AIC_1971_1

ANNALES INTERNATIONALES DE CRIMINOLOGIE

INTERNATIONAL

ANNALS

OF

CRIMINOLOGY

ANALES

INTERNACIONALES DE CRIMINOLOGIA

(Numéro spécial)

“ NON INSTITUTIONAL TREATMENT OF OFFENDERS **

PROCEEDINGS of the xxth INTERNATIONAL

COURSE in CRIMINOLOGY

LAGOS (Nigerio)ﬂég/g‘t}{slf,' 4th-11th 1970

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Année 1971 (volume 10-n° 1)

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TABLE OF CONTENTS

TABLE DES MATIERES

PROCEEDINGS of the xxth INTERNATIONAL

COURSE in CRIMINOLOGY

PREMIERE PARTIE

XXTH INTERNATIONAL COURSE IN CRIMINOLOGY

Problems of Penology in Nigeria

13

Development and the Planning of Social Defence in East Africa

21

Criminality in the Rapidly industrialized Urban Milieu

Examination of Social

Defense Measures in North Africa, by Denis Szaso

51

A critique of Institutional Care, by P. CLAIRMONTE

=q

Alternatives to Prison in East Africa, by G.H. BOEHRINGER

91

of Crmmology in a Developmg Country A case Study of ngena,

The Chcdlenge

ADEYEMI

149

Methodological Aspects of African Criminology, by G. Houchon

185

Concept and Basis of Criminal Responsibzllty, by the Honourable Mxmster of

Justice AXINOLA AGUDA

196

The Role of the Police and the Courts in the Admmlstruhon of Cnminal Iushce

in Nigeria, by

(e}

OLAWOYE

)99

The Future of Sentencing in Nigeria, by Alan MILNER

07

Non-Institutional Care of Offenders in Practice

The Danish Experience,

by

O. CHRISTIANSEN

283

Outline of Non-Institutional Treatment of Offenders, by M. Lopez-REy

311

Psychiatry in the Administration of Criminal Justice in Nigeria, by T. Asunt

313

Traditional and Modern African Criminal Policies

325

XXth

International Course in Cn.mmology on non-inshtuhonal

treatment of

oftenders

concluding resoluhon

335

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>

XXth International Course in Criminology

»

““ Non-Institutional Treatment of Offenders’

August 4th - | Ith, 1970 University of Lagos, Nigeria

This was an International meeting on Criminology.

It was named a

“course” to conform with tradition and practice of the International Society

of Criminology and it was the 20th of a long series even though it was more

of a seminar.

A similar meeting for French speaking African countries was

held in Abidjan, Ivory Coast, 1966.

In order to bridge the gap between

French speaking and English speaking African countries in the area of crimi-

nology, where they have similar problems of inheriting criminal codes of their

former colonial over-lords, of rapid socio-economic change, of breakdown in

traditions etc., it was originally planned to have participants or at least obser-

vers from the French speaking African countries.

As the cost of simultaneous interpretation could not be met, it was

arranged to have two bilingual criminologists to act as informal interpreters

for any French speaking African delegate.

It was unfortunate that in spite of

this arrangement no French speaking African delegate was able to attend.

The meeting was organized by the Nigerian Society of Criminology

under the auspices of the Faculty of Law of the University of Lagos.

The

Nigerian Society of Criminology had been informed since 1964, but owing to

various difficulties, particularly the political unrest in the country, the Society

did not make much progress.

Branches of the society were however formed

in Ibadan for the old Western Region, Benin for the old Mid'Western Region

But

and Nsukka for the old Eastern Region, before the political upheaval.

these too had been dormant for sometime.

And the society’s revival has been

solely on the national level.

In addition to the aim of getting together workers in the area of crimino-

logy especially those who are in key positions to influence policies in their

different countries to discuss their common problems, it was envisaged that

such an international meeting will give more impetus and life to the Nigerian

Society of Criminology, and also bring the Society to the notice of the public

and government.

It was also envisaged that the meeting will stimulate parti-

cipants from other African countries to form similar societies in their countries

where there is none.

Most important however was the aim of provide a

form for exchange of ideas and interaction between people of different disci-

plines, nationalities and culture, and also between the academics and the

professionals.

s B

The subject, “Non-Institutional Treatment of Offenders” is considered

to be very relevant to African countries which are not as over burdened with

As

the tradition of custodial treatment as the more developed countries.

these African countries are not as deeply entrenched in the custodial system,

it will be much easier for them to examine some new dimensions in the treat-

ment of offenders.

The meetings, it was hoped, will give adequate opportu-

nity for examining indigenous traditional methods of treatment of offenders

and retrieve what factors in these methods that may be useful in the context

of the changing socio-economic scene. The subject matter of necessity will

include the processes that lead to treatment, which can also be examined.

The meeting was opened on the 4th of August, 1970 in the University

of Lagos.

After the introductory remarks by Dr. T. Asuni, the founder, and

the General Secretary of the Nigerian Societyy of Criminology, opening spea-

ches were made by the Chief Justice of the Federation of Nigeria, the Right

Honorable Sir Chief Adetokunbo Ademola, the Vice-Chancellor of the Univer-

sity of Lagos, Dr. S.O. Biobaku, the Attorney-General of the Federation of

Nigeria and Dean of the Faculty of lLaw, Dr. T.O. Elias—who was also the

Director General of the course, The Honorable Mr. Justice T.A. Aguda—who

is the Protem President of the Society, and Professor Manuel Lopez Rey of

the University of Puerto Rico as the representative of the Scientific Committee

of the International Society of Criminology, Dr. Alphonse Boni, President of

the Supreme Court in Abidjan, Ivory Coast, who was unavoidably absent, sent

a congratulatory cablegram which unfortunately arrived late for the opening.

Participants and paper reading, over sixty in all, came from Congo-Kin-

shasa, Denmark, Ghana, Kenya, Nigeria, Uganda, United Kingdom, United

States.

They consisted of academicians in the fields of law criminology, psy-

chology, sociology and medicine, and also practioners in the field of crimi-

nal justice like judges, magistrates, state attorneys, private legal practitioners,

police officers, prison officers, social workers, sociologists, psychiatrists and

forensic pathologists.

Needless to say that Nigerian participation was the

largest.

After a short coffee break following the opening ceremony, the meeting

proceeded to working sessions.

Each session was presided over by a chair-

man-rapporteur who took note of the gist of the discussions.

Most papers

had been circularized before hand, which gave ample time for intensive and

extensive discussions.

The authors were also given the opportunity to reply

to questions and elaborate on points where necessary.

At the end of each

session the chairman-rapporteur gave a summary of the papers and discussions.

One paper was dealt with at a time, each paper had a different chairman-

rapporteur.

The papers presented are as follows

“The Challenge of Criminology in a Developing Country : A Case Study of

Nigeria”, by Mr. A.A. Adeyemi, Lecturer, Faculty of Law, University

of Lagos, Nigeria.

““Methodological Aspects of African Criminology”, by Professor Guy Houchon,

Lovanium University, Congo Kinshasa.

“Concept and Basis of Criminal Responsibility”, by the Honorable Mr. Justice

T.A. Aguda-Judge of the High Court, Western State, Ibadan, Nigeria.

“psychiatry in the Administration of Justice in Nigeria”, by Dr. T. Asuni,

Medical Superintendant Aro Hospital, Abeokuta ; Associate Lecturer, Medi-

cal Schools of lbadan and Lagos Universities, Nigeria.

“Traditional and Modern African Criminal Policies”, by Professor T.O. Elias,

Attorney General of the Federation of Nigeria and Dean of Faculty of

Law, Lagos University, Nigeria.

“The Role of the Police and the Courts in the Administration of Criminal

Justice”, by Mr. C.O. Olawoye, Lecturer, Faculty of Law, Lagos Univer-

sity, Nigeria.

“Alternatives to Prison

in East Africa”,

by Mr.

G.H. Boehringer

Former

Lecturer in Law, University of Tanzania and member of Oxford Penal

Research Unit, Now Lecturer, Faculty of Law Queens University, Belfast,

N

Ireland.

““Achievements and Prospects of Non-Institutional Treatment of Offenders”,

by Professor M. Lopez-Rey, LL.D., Visiting Professor Institute of Criminology,

University of Cambridge, England.

“Future of Sentencing in Nigeria”, by Dr. Alan Milner, Former Professor and

Dean of Faculty of Law, Ahmadn Bello University Zaria, Nigeria, Now

Fellow of Trinity College, Oxford, and Editor, African Law Reports.

“Non-Institutional Care of Offenders in Practice - The Danish Experience”,

by Professor Karl O. Christansen, University of Copenhagen, Denmark.

“A Critique of Institutional Care”, by Mr. Paul Clairmonte, who was a Research

Fellow, Behavioral Sciences Research Programme of the Department of

Psychiatry and Neurology, University of lbadan.

He was unable to attend

the meeting. But no S.E. Idada of the Prisons Department, Lagos introduced

the paper for discussion.

Three other papers were submitted but not discussed

“A Report on Problems of Penology in Nigeria”, by Professor T.O. Elias.

“Development and the Planning of Social Defence in East Africa”, by Mr.

G. Boehringer.

“Criminality in the Rapidly

Industrialized Urban Milieu

Examination of

Social Defence Measures in North America”, by Professor Denis Szabo,

Director,

International

Centre for Comparitive Criminology,

University

of Montreal, Canada.

He was unable to attend after preparing and submitting his paper.

—_0 —

The meeting offered the opportunity for comparison of methods and

systems in Criminology between some African countries, and also between

developing African countries and more developed countries,

It was evident that lawyers from their contribution are critical of the crimi-

nal policies which do not seem to have any relevance to the traditions of the

people and are most unsatisfactory. They are anxious to have a total review

of their criminal policies and law. Some of the traditional methods of dealing

with crime were examined and their consideration for victims which is often

missing in existing criminal policies was noted with regret.

This omission

makes some criminal codes meaningless, or even disadvantageous to the com-

munity which they are designed to protest, particularly in the African scene.

The inadequacy of the police system was remarked upon and it came to

light during the ensuing discussions that the police is grossly understaffed and

grossly deficient in equipment.

It was generally agreed that a large number of convicts in prison should

not be there at all, especially those on short term imprisonment.

The relevance

of prison system in the African context was questioned.

Besides its excessive

financial burdens, its failure to achieve the desired goal, and its inappropri-

ateness were also noted.

The multi-disciplinary nature of the meeting was most u;eful. The problems

confronting various sectors were brought to the knowledge of all.

For instance,

the restriction of the judiciary to a limited number of possible sentences was

emphasised.

The problem of the police which makes them apparently inade-

quate in the performance of their duties were enumerated during the discussions.

The judiciary was made to appreciate the difficulties of the police and vice

versa, and the prison officers were informed of the problems of the police and

social workers.

Community participation in the treatment of offenders, just like the notion

of community psychiatry, was discussed ; and the general education .of the

public in the field of criminology was considered to be absolutely necessary to

enable public support for and cooperation in any methods of treatment that may

be devised. The suspicious of an ignorant public was noted.

It is too soon to assess the impact of the meeting on the community. The

meeting was preceeded by a press conference and the whole course received

extensive coverage in the newspapers, radio and television.

One thing is

That a

certain, public awareness was aroused to the subject of criminology.

large majority of delegates attended in their official capacities is evidence of

official newly-kindled interest in the subject of criminology which participation

of delegates may enhance further into positive action in the right direction

It is hoped that such interest will be positively and practically maintained.

During the course of the meeting, visits were made to the Boys Approved

School in Isheri near Lagos and also to Kirikiri Prison in Apapa, Lagos where

participants -were - entertained by the prisoners. On their way to 'Ibadan, Ife,

O

and other parts of the Western State which is contiguous with Lagos State, the

participants visited Aro Neuro-Psychiatric Hospital and its closed-unit annex

Lantoro Institution where criminal lunatics are kept in Abeokuta.

It is also in

Lantoro Institution that psychiatric observations are made for the Courts.

At the end of the meeting

the following

resolution was

passed

XXTH INTERNATIONAL COURSE IN CRIMINOLOGY ON NON-INSTITUTIONAL

TREATMENT OF OFFENDERS : CONCLUDING RESOLUTION

The Nigeria Society of Criminology,

mindful of the present magnitude and the future gigantic dimensions

of the crime problem ;

I

realising the enormity of the financial losses produced by criminal

activities ;

1l

appreciating that Institutional Treatment of offenders is not always

the best method of treating offenders and is often too expensive ;

v

anxious to pursue its aims of promoting the study, dissemination and

advancement of Criminology, in respect of which it has held the

XXTH International Course in Criminology on Non-Institutional Treatment

of offenders under the auspices of Faculty of Law, University of Lagos

from Tuesday, August 4 — Tuesday August 11, 1970 ;

RESOLVES :

1

That an Institute of Criminology be established, with immediate effect,

within the University of Lagos ;

and

That the Federal Military Government and all the State Governments

be invited to implement, as early as may be, the progressive penal

reform measures recommended and adopted at the present Course.

In addition to this resolution the paper by Professor Elias “A report on

Problems of Penology in Nigeria”, which was not discussed, stated “Its the

hope of the Nigerian Society for Criminology that the International Society

of Criminology persuade the United Nations...”” to establish a Regional Institute

of Criminology in the University of Lagos for English speaking Africa.

That

the teaching of Criminology as a science, and as a subject of University study

and research is a sine qua non of any meaningful system of penelogy does

not need any emphasis in the context of the comtempory need of the develo-

ping countries of Africa.

B 7 e

“The institution of regular courses in the various aspects of the problems

of penology should serve to encourage a wider diffusion of progressive ideas

in the prevention as well as the detection of crime. The Institute of Criminology

should run courses not only for under-graduates and post-graduate students,

but also for those working in the police force, the prison service, and the social

welfare organizations.

The holding of regular seminars, conferences, and

public lectures in all the main cities and towns should be an additional means

of inculcating the right knowledge about the criminal in society, thus fostering

a greater sense of social obligation among an ever increasing circle of

public-spirited individuals.

The scientific teaching of criminology should also

encourage legislative reform by serving as a means for the dissemination

of the latest results in research and comparative study; the international

practices and experiments in this field should be made available to the inde-

pendent African countries by the continual interchange of experts between

these countries and the more developed areas in Europe and America.

While,

therefore, the institute will be located within the University of Lagos, it will

remain truly international both in personnel and in orientation, thus making

it to be of greatest possible value to Africa and to United Nations”.

Further to the resolution, it was also agreed that it is most necessary

and desirable to have a Journal of African Criminalogy to carry papers dealing

particularly with experience, research, observation in Criminology in Africa.

In other words, the focus should be on Criminology in Africa.

In the absence

of this, papers on African Criminology are scattered all over learned journals

in Europe particularly England, France and Belgium, and North America, and

it is difficult to keep track of them.

To achieve this essential objective of a Journal of African Criminology

considerable help will be needed financially and morally from international

and even national organizations.

e

— 19

Problems of Penelogy in Nigeria

1. — CRIMINAL LAW AND PROCEDURE

The administration of criminal justice in Nigeria is governed by the

Criminal Code of Nigeria and those of the former constituent Regions except

the former Northern Region which had a Penal Code Law of its own (1);

the Criminal Codes, while the Penal

Procedure Code Law does the same

to its substantive counterpart.

The main difference between

the Criminal

Codes and the Criminal Procedures on the one hand, and the Penal Code

Law and the Penal Procedure Code Law on the other, is that the former

is more closely based upon English Law than the latter which came into

force only since 1959 and which derives from the Sudanese penal legis-

lation on the subject (2).

Even the Northern Nigeria Penal Code Law and

its supplementary Penal Procedure Code Law may be said to derive ultimately

from English Criminal Law and Criminal Procedure through the Indian Penal Code

and, later, the Pakistan Penal Code before its receiption and modification in

the former Anglo-Egyptian Sudan.

It is, however, true that both the Indian

and the Sudanese codes are simplified versions of the English criminal law,

and that it is the Nigerian Criminal Code and Criminal Procedure, which all

the former constituent Regions of the Federation have retained almost in their

entirely as their own criminal and penal legislation.

Despite the divergencies of detail between the two sets of criminal legis-

lation in Nigeria, the administration of criminal justice has certain common

broad features.

In the first place, the definitions and basic concepts of various

offences are far less complicated than are those of the English Criminal Law

upon which they are based, and this is true of both the Nigerian Criminal Code

and of the Northern Nigerian Penal Law.

Thus, the Nigerian criminal and

penal legislation employs the term “theft” for all the miscellaneous English

crimes called larceny, embezzlement, obtaining credit by fraud and obtaining

by false pretences.

Also eschewed, as far as possible, are the highly technical

(1) The newly created six States have retained the existing criminal law and

procedure, at least for the time being.

(2) Between 1916 and 1959, there was only one Criminal Law throughout Nigeria,

and that was the Nigerian Criminal

ode Act,

Regionalisation in 1947 of the former

unitary system of government did not affect the uniform character of this legislation

until 1959, although under the newl

introduced federal system in 1954, it was clear

that Criminal Law would be regionalised because it was a residual subject under the

Constitution of 1954.

13 —

formulations of those offences under English law and the often over-subtle

Such simplification may not always be a virtue but,

requirements of proof (3).

given the prevailing social and economic conditions in Nigeria as indeed in

other comparable areas of the world, it is necessary and expedient for the

true administration of justice.

Because of their basis of English Law and procedure, certain charac-

For

teristics of Nigerian criminal and penal legislation may be mentioned.

example, every accused person is presumed to be innocent until he is proved

guilty in a court law.

No one may be tried except by a court of law or by

a tribunal duly established by law ; the trial must be in the public or at a place

to which the public have access, unless in very special circumstances, such

a trial of children, where the law permits a private hearing.

Everyone must

be informed as soon as possible of the offence with which he is charged in

a language that he understands, and he must be brought up for trial at the

earliest possible moment.

Every accused person is entitled to defend himself

or to be defended by counsel of his own choice ; and he is entitled to the free

service of an interpreter in case he does not understand the lanquage of the

court, which is English in all the courts of record in Nigeria.

No one may be

punished for an act or omission which was not an offence at the time when the

act or omission took place.

In this connection, it is noteworthy that all forms

of customary criminal laws and procedures that are not in written form are

forbidden (4).

Another important characteristic of the Nigerian criminal and

penal legislation is the limited use of the Jury System mainly in murder cases

and until recently, also in cases of rape.

In this respect, the influence of the

indigenous closely-knit, extended family system has not been conducive to the

employment of Jury Trial on as wide a scope as obtains in the United

Kingdom (5).

2

— THE TREATMENT OF OFFENDERS

The pattern of the court organization may be briefly described as consis-

ting of a High Court of Justice of unlimited jurisdiction for each of the consti-

tuent States in the Federation, assisted by three grades of magistrate’s courts

in each and by a large and miscellaneous number of customary courts with

varying degrees of jurisdiction.

Appeals lie from each of the State High Courts

to the Supreme Court of Nigeria, which is the final court in both civil and

criminal

matters.

Each of the State High Courts and of the subordinate

(3) See my Nigeria : Development of Its Laws and Constitution (1967), p. 353-387.

Stevens and Sons Ltd., London.

(4) All the foregoing provisions are to be found in section 22 of the Constitution

of the Federation of Nigeria 1963, which

uarantees the individual's right to a fair

hearing throughout the Republic.

Almost all the provisions stated in the text in this

connection have been part and parcel of the Criminal Law and Procedure of Nigeria

for more than the preceding 50 years.

5) The reason is that the sociological and economic difficulties militating against

the extensive use of Jury Trial are common to a number of other development countries.

ee, e.g., my Bristish Colonial Law : A Comparative Study (1962), p. 259-266.

Magistrate's Courts and Customary Courts adminsters both civil and criminal

jurisdiction concurrently

In addition to the regular courts of law, there are Juvenile Courts in all

the main centtes of population

These are presided over by magistrates

assisted by lay assessors

Under the various Children and Young Persons laws,

largely modelled on English legislation, the Juvenile Courts have jurisdiction

over persons between the ages of fourteen and seventeen

The procedure is

as informal as possible

Those found to be in need of

care and protection

an expression covering cases ranging from those in moral danger to those with

anti-social tendencies-may be boarded with foster-parents at the expense partly

or wholly of defaulting parents or of the Local Authority, or may be sent to

a Remand Home

The Federal Ministry of Labour and Social Welfare and

its regional or State counterparts maintain a large number of Welfare and

Probation Officers whose duties include the supervision of all young persons

in this category.

Juvenile delinquency is one of the symptoms of the social

malaise resulting from the break-up of the traditional family and extended

family structures that formerly ensured community well-being and solidarity ()

Although there has not been any stated Government policy on penology, it

can nevertheless be said that the trend in recent years has been away from the

retributive theory of punishment and increasingly in the direction of the

reformative

In the treatment of prisoners, more and more emphasis is being

placed on reformation and subsequent rehabilitation of the offenders

As the

“The

Federal Director of Prisons recently remarked inter alia

important

thing, however, is to realize that the prison system in Nigeria as a whole is

purely reformatory and not punitive

The aim is to make the prisoner more

useful to himself and to society on his release” (7)

But a great deal has

yet to be done before this worthwhile objective can be fully achieved

Too

often is current practice bedevilled by old habits of thought which regarded

the law breaker as an anti-social animal that must be subjected to harsh

physical conditions during his confinement as a means of showing him that

crime does not pay

There is a need on the part of prison staff throughout the

Republic to appreciate that their duties lie in the provision of positive and

conscious guidance to the prisoners in their charge, and that these require

a moral and sympathetic atmosphere for their regeneration

It must be admitted that the Governments ought to and are already

providing the legislative and the financial basis for this change in penal

procedure and practice

In the sphere of legislation, much legislative reform

is underway, including a complete revision of the Nigerian Criminal Code and

the Criminal Procedure Act.

(6) For a fuller consideration of this matter, see my «Some Considerations on the

Administration of Criminal Justice in Nigeria»w in The International Review of Criminal

Policy, No. 20, p. 3-10, Geneva,

() The Report of the Working Party on Police and Prison Services in Nigeria

(1967),

52.

Federal Ministry of Information, Printing Division,

08,

wa 15 —

There is a bright prospect in the growth of “after-care” organizations

devoted to the cause or rehabilitation of discharged prisoners.

While

n

prison, nearly all able-bodied prisoners are encouraged to learn a trade or

undergo a course in some aspect of primary industry.

Prisoners have for

some time now been turning out good quality book-binding of various sort,

shoe-repairs, raffia works, and a host other useful materials in every-day use.

All these they do for pay according to a settled official tariff.

It is thus

have

learned

their

seen that most of them will

something with to earn

keep after their prison days are over.

Indeed,

cases are known where

prisoners occasionally deliberately commit a second offence in order to be

back in prison to complete their interruped training in some branch of trade

or profession.

One must hope that society will soon make this unnecessary in

the near future by provision of additional training facilities and opportunities

The various Ministries of Labour and Social Welfare

outside the prison walls.

are already considering the possibility of encouraging the formation of more

and more of various kinds of Discharged Prisoners Aid Society to serve as

depositaries of the ex-prisoners and to assist them with funds provided by

the Government for the purpose of helping them re-setle in the community.

There is as yet no Parole System in Nigeria, and it may be desirable

to experiment with it especially in the case of those serving more than five-

year periods of emprisonment.

Under the Constitution of Federation, the Nigerian Police Force (8) is

a countrywide organization under Federal control through the Inspector-General

Under him in each of the constituent

of Police based in Lagos, the capital.

units of the Federation is a Commissioner of Police assisted by a local contingent

of the Nigerian Police Force.

Each local contingent may upon request be

assisted by the appropriate Local Authority Police to deal with serious cases

of breaches of law and order within the Region or State concerned (9).

The

Criminal Investigation Department of Force (the C.1.D.) is a central organization

that serves the whole country in the work of crime detection and prevention.

It has at its disposal the Forensic Science Laboratory at Oshodi within the

new Lagos State, and it assists inter alia within with autopsy cases examines

fire-arms to determine whether they have been fired, conducts blood test

(including the ascertainment of human blood on clothing materials), determines

the classification of woods and conducts examination of exhibits in hemp cases.

In charge of the laboratory is a highly specialized Nigerian staff of pathologists.

An ancillary service rendered by the Laboratory is its extensive use for

(8) In order to

insulate the police force as much as possible from political

influence,

the Nigerian Police Force is subject to the control of the Police Service

Commission consisting of the Chairman of the Public Service Commission as its chairman,

a Judge of the High Court of Lagos and two other independent persons.

It deals with

appointments, promotion, discipline or dismissal of members of the Force.

There is

also a Nigerian Police Council which has supervisory control over organisation and

administration of the Force and other matters relating thereto.

(See ss, 106-110 of the

Constitution.)

(9) A programme for the integration of the wvarious Local Authority police forces

with the Nigerian Police Force has now reached an advan

stage.

S GYees

teaching of new recruits to the Police Colleges (10) and other members of the

Force.

Its over-all supervision is under the Federal Ministry of Health.

Another means employed in the detection of crime are the tracker bogs

imported form abroad.

The number and use are limited as much by financial

considerations as by social circumstances.

In the work of crime prevention,

the Mobile Riot Unit of the Police Force performs a useful function in that

it is called upon, as and when occasion demands, to deal with certain types

of crisis situations requiring firm action.

Sanatoria exist in many of the major cities and towns to cater for the

needs of mental patients, although services in this area could be considerably

expanded.

Particular mention must be made of the well-known Aro Mental

Hospital, situated at Abeokuta, which is a federal institution serving the whole

country (and which is in the charge of specialist Nigerian doctors, nurses and

other staff. This body also serves for teaching purposes.

Nigeria has a well-organized prison system at both the Federal and the

regional or state levels.

Under a Nigerian Director of Prisons, there are

categories of federal prisons ranging from those for hardened criminals and

those convicted of treason, treasonable felony and other heinous offences, to

those for lesser offenders.

According to the nature of their inmates, these

prisons are differently equipped and organized, there being very much greater

stringent measures to ensure maximum security in the case of serious felonies

than in that of lesser crimes.

These federal prisons are to be found throughout

the Republic housing guests of the Federal Government duly adjudged to have

fallen foul of Federal laws ; they exist side by side with the Regional or State

prisons which house offenders against the Regional or State laws.

Under the

Federal Constitution, prisons and other institutions for the treatment of offenders

are on the Concurrent Legislative List, which means that both the Federal and

the State Governments have the legislative competence to establish and maintain

these institutions.

3

— THE CASE FOR AN INSTITUTE OF CRIMINOLOGY

It seems that, if progress is to be made with penal reform, there must be

a new awareness among the general public of the need for reorganization

and improvement in our existing penal laws, practices and institutions.

Apart

from encouraging the formation in increasing numbers of the “after-care”

organizations to which reference has been made earlier, it is desirable to

enlarge the existing provision for social services within our prisons.

Under

the Nigerian Criminal procedure Code Act, there is provision for the estab-

(10) All the basic training of new recruits to the Force is done locally at Police

olleges established over fifty years in some cases.

For highly specialized training,

scores of experienced officers have, over a long period, been sent to the United

Kingdom from time to time.

A

lishment and maintenance of an Adult Probation Service, the primary objective

of which is the care and comfort of the discharged offender.

An Adult Probation

Service is at present run by the Social Welfare Division of the Federal Ministry

of Labour.

It is to be hoped that a fuller use of this service placed at the

disposal of the courts of law would lead to a greater use of the probation

system than imprisonment as a means of reforming even adult offenders.

It is

to the advantage of the Governments to maintain as small a proportion of

prison population as possible, with consequent savings in money and men.

But this desirable development is, however, not enough.

The Nigerian National Society for Criminology, of which there are branches

in Lagos, Ibadan, Enugu and Kaduna, has for some time been engaged in

making arrangements for the holding of an International Course in Criminology

for English-speaking Africa in Lagos for a date yet to be fixed in 1968.

Early enquiries indicate that the U.N.E.S.C.O. may be persuaded to assist

with this important event.

The last of such annual International Courses in

The

Criminology was held in Abidjan, Ivory Coast, for French-speaking Africa.

International Society of Criminology is responsible for organizing these annual

courses.

A member of the International Society of Criminology, Dr. T. Asuni

who is in charge of the Neuro-Psychiatric Centre, Aro Hospital, Abeokuta, has

been collaborating with me in my capacity as the Dean of the Faculty of Law

in the University of Lagos to have the proposed International Course in Crimi-

nology held under the joint auspices of the University of Lagos and the Nigerian

National Society for Criminology.

Unfortunately, the Nigerian Society lacks the necessary funds with which

to engage suitable local as well as foreign personnel to run the organization

on business-like and efficient lines.

There will have to be financial support

from external sources, since the Governments lack the resources with which

to support the Society adequately in addition to its other pressing commitments.

It is the hope of the Nigerian Society for Criminology that the Interna-

tional Society of Criminology will persuade the United Nations not only to

accept the Nigerian institution as a member of the International Society of

Criminology, but also to establish a Regional Institute of Criminology in the

University of Lagos for English-speaking Africa.

That the teaching of Crimino-

logy as a science and as a subject of University study and research is a

sine qua non of any meaningful system of penology does not need any empha-

sis in the context of the contemporary needs of the developing countries of

Africa.

The institution of regular courses in the various aspects of the problems

of penology should serve to encourage a wider diffusion of progressive ideas

in the prevention as well as the detection of crime.

The Institute of Crimino-

logy should run courses not only for undergraduate and postgraduate students,

but also for those working in the Police Force, the Prison Service, and the

Social Welfare organizations.

The holding of regular seminars, conferences

and public lectures in all the main cities and towns should be an additional

means of inculcating the right knowledge about the criminal in society, thus

-~ 48 —

fostering a greater sense of social obligation among an ever-increasing circle

of public-spirited individuals.

The scientific teaching of criminology should

also encourage legislative reform by serving as a means for the dissemination

of the latest results of research and comparative study; the international

practices and experiments in this field would be made available to the indepen-

dent African countries by the continual interchange of experts between these

countries and the more developed ones in Europe and America.

While, there-

fore, the Institute will be located within the University of Lagos, it will remain

truly international both in personnel and in orientation, thus making it to be

of the greatest possible value to African and to the United Nations.

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Development

and the Planning of Social Defence

in East Africa

“Development takes place on a foundation of law and order, and when

By hampering

crime is present, its toll is not limited to the individual victim,

economic development it represents a substantial and long term cost to the

-entire community.* (1)

In this paper | want to discuss Social Defence Planning, an aspect of

Development planning which has received little attention in the world gene-

rally, (2) and so far as | can tell, has not been considered in East Africa

except briefly in several of my own previous papers (3).

There has been a

considerable amount written on crime in East Africa (4), and some of it can be

seen to be relevant to Development (5).

In addition there is a burgeoning

literature on Law and Development relating to Africa generally (6), and East

for

reasons

I

Africa in particular (7).

Nevertheless,

will suggest below,

criminological aspects of development have been neglected (7a) (except for

the considerable attention paid to the obvious and serious problem of corrup-

tion [8]) and the issue of Social Defence planning entirely ignored (with the

exception of brief discussions in my papers mentioned above.)

By Social Defence planning | mean in general the development of a

programme for action with regard to deviant behaviour and related social

problems.

In the context of Development, Social

Defence plannig would

require that Development planners should consider problems of Social Defence

as thoroughly as they consider problems directly relating to economic growth (9).

Several questions immediately arise

what exactly is Social Defence ?

‘What is the nature and extent of the relationship between Development and

What is the

the social problems with which Social Defence is concerned ?

method of planning for Social Defence ?

“Social defence” is a phrase which has an interesting and stormy career,

and which has meant many things to many people (10), but which has now

settled down to sedate and respectable career (11) as the Chief international

description of what would perhaps still be called by most English speaking

2

social scientists as “‘the prevention of crime and treatment of offenders.

However in my view Social Defence covers a much wider field than that which

RO | e

has traditionally been accepted in the common-law countries as the legitimate

concern of those dealing with crime and punishment (12), or even that which

has been accepted by the modern American students of ““deviant behaviour’ (13)

and related “techniques of intervention” (14).

In a Developing country, and

particularly a Socialist country where planning is the basic social strategy,

Social Defence ought to concern itself with the entire web of social relations

which tend to induce or alleviate conditions conducive to deviant behaviour.

To put it in another way, Social Defence is really Criminology at high Government

level, and Criminology must concern itself not only with the obvious questions

of crime prevention, and causation and treatment of offenders, but with the role

of the judiciary, the nature and scope of the laws sanctions available, plus

education, health and welfare services, employment and other aspects of indus-

trial and agricultural strategies, entertainment and cultural activities, ideology

and political education (15).

Thus the scope of Social Defence is practically

infinite because it deals with all aspects of social relations.

Obviously we

haven't the expertise nor the data to deal with all of these matters intelli-

gently (16), but it ought to be made explicit that “the crime problem™ (17) is

not in fact simply a crime problem, but a symptom of a societal problem, and

it is to a considerable extent determined, indeed aggravated, by the nature of

Development (18).

Development brings about conditions which tend to result in crime, or what

L

Mannheim has referred to as “‘criminogenic

99

conditions.

These will vary from

country to country, depending to some degree on such background factors as

the history (19), geography (20), general culture (21), religious influences (22),

traditional practices (23), political ideology (24) and perhaps others as

well (25).

Placed in the general context of such conditions, development (by

which | mean here essentially economic growth through political economic

and social change) brings about new social problems, (while solving some old

ones such as poverty, ignorance and hunger) which apparently create a higher

incidence of deviant behaviour.

As one writer puts it “freedom to grow implies

a risk of crime.

Some control of crime is essential, however, in order to

avoid the kind of chaos which would be inimical to any development...If one

is indeed committed to seeking a balance between order and development,

this means that while the expansion and growth of the economy remains important

is cannot be purchased at any price... An eye must be kept unwaveringly upon

the social consequences of economic decisions and allocation of resources” (26).

This is not to say that planners must go slow and that revolutionary change

is not to be considered because of the adverse effects of such change, so long

as it is effectively carried out and backed, or guided, by a political ideology

and effectively involving the masses, would likely result in less crime.

What

is to be emphasized is that even the planners who are most conscious of the

social dimension of development and who realize that economic development

is only a means to a social end, nevertheless are “‘often preoccupied with the

need to get the best and most immediately obvious return in material terms...

the concept of maximized economic growth persists in economic planning.

However broad the ultimate objectives, there is an appreciation that income

must be improved in order to get results in other directions

Thus, modified

and restrained though they may be, considerations of production and tangible

returns still loom large in any programme

As plans proceed to detail

priori-

ties are assigned and industry, agriculture, and public utilities are likely to

come first in line for available resources

Faced with a choice, a planner

cannot usually be blamed for preferring to play safe by investing for higher

productivity rather than risking resources on vaguer and less productive social

projects. These latter may sometimes be imposed by the political climate of

the time—or may be accepted to a limited degree as being necessary to

balance the plan : but it will be unusual if industry, agriculture, forestry, public

utilities and the economic infrastructure of a society do not receive prior

attention

If social objectives are the ultimate ends, economic growth will be

the more immediate aim, or at any rate the most pervasive or available means

from a planning point of view

Certainly, social problems like crime cannot

expect to elicit enthusiastic consideration.” (27)

THE RELATIONSHIP BETWEEN CRIME AND DEVELOPMENT

The nature and the extent of the relationship between Crime and Deve-

lopment is extremely difficult to judge

But there are certain aspects of the

crime problem that can be clearly seen as inimical to Development

I will not

discuss at length the problems of corruption because it has received sufficient

attention from academics and the press and also governments (28), so that any

further discussion in this paper will serve only to reiterate the points already

made

Nevertheless, it ought to be kept in mind as a problem in East Africa,

and one which must be a major focus in any programme for dealing with crime

in the Development context

It would seem clear to me that however one

argues in favour of certain possible beneficial aspects of corruption, it is and

is seen to be by the masses as proof that whatever the system is supposed

to be and to do for them

it is being exploited for the benefit of certain

elements perforce to the disadvantage of the masses (29)

Going beyond corruption, one can cite other types of crime which have

In Tanzania, for instance, tourism has

a clear relationship to Development

been selected for substantial investment as a growth industry which will earn

increasing amounts of foreign exchange.

Yet there are numerous, and perhaps

increasing, amounts of attacks on tourists and people generally in many public

places, particularly on the Dar es Salaam beaches (30)

It has gotten to the

point where very few public places along the ocean can be considered safe.

This adverse effect on the tourist industry that this can have if alldwed to

continue is, of course, clear.

Crime on the highway in the form of traffic offences is, in.Tanzania

though perhaps not yet so much as in Kenya and Uganda, another serious

roblem which has effects on Development (31)

The amount of loss of hiah

e ) S

level manpower has been rather severe, not to mention all of the other costs

and losses involved (32).

lack of time and space prevents me from dealing at length with other

crimes such as stock theft and smuggling, both of which have considerable

bearing on Development (32a).

Nevertheless | would like to consider a similar

crime, illegal hunting, at some length because it has not been discussed very

much as a crime problem and because it is so clearly related to development,

particularly in relation to the tourist industries of East African countries (33).

IHegal hunting (34) is a crime of great incidence in Tanzania, and East

Africa generally ; however, there is little reliable data on its scope (35).

| prefer to use the term “illegal hunting” rather than “poaching’ because the

latter is too much bound up with shooting of game without the required

license (s), or in a proscribed area, whereas, in fact, there are many more

kinds of illegal rural behaviour which perhaps might be more appropriately—

although less conveniently

subsumed under the rubric “illegal hunting and

gathering™.

In discussing illegal hunting | do not intend %o consider the

problem of cattle theft which is essentially a different crime and a considerable

subject in its own right.

As with illegal hunting, the amount of reliable data

about cattle theft is scarce, and the literature scanty although in the latter

case we are not so badly off as we are in relation to illegal hunting (36).

Before going further | would like to point out that there are important

sources of information about illegal hunting which have remained virtually

untapped. These are the personnel involved on both sides and also as inte-

rested onlookers.

| refer to the illegal hunters themselves, middlemen and

receivers, the police and other government officials with the duty, primary

or otherwise, to deal with the problem, and the professional hunters, both past

and present, who have watched from the side-lines and who have mingled

with participants on both sides.

One of the few academic accounts is, of

course, “lllegal Hunting” by D. K. Thomas, a former Game Park Warden

long in the Tanganyika service, now retired to Britain.

It was Mr. Thomas’

article which first called my attention to this form of deviant behaviour.

Subsequently | had the opportunity to discuss the problem of poaching and

its related illicit trades with Mr. Don Rundgren, the son of Eric Rundgren—

one of the greatest of East Africa’s professional hunters—and now a profes-

sional himself.

It was Don Rundgren who directed me to the fascinating book,

The Elephant People, by Dennis Holman (37), in which the journalist author

describe poaching in the Tsavo National Park in south-eastern Kenya.

(Holman

got much of his information from Parks personnel, from poachers and persons

engaged in ancillary trades, and from people in the area who were, at the

very least, by—standers.

It is this kind of fleldwork than can add a tremen-

dous amount to our knowledge of such problems as rural deviant behaviour.)

Much information can also be gleamed from East African newspapers which

occasionally print features on the subject (38) and periodically excerpts from

Game and Park Wardens’ reports, and comments thereupon by the Warden

and other officials (39).

MRt

Let me return then to the concept of illegal hunting.

By this generic

term | mean to include activities, almost exclusively in rural areas, which are

carried on either for basic sustenance or for profit—that is, some tribes, and

this would appear to be rather uncommon in East Africa today, rely on the

fruits of such behaviour simply to exist, and in a sense it is “a way of life” ;

on the other hand, there are those who hunt illegally in order to sell the

products of their efforts.

In the latter case the hunting may still be the main

occupation of those involved, but it is carried on as a commercial business

which provides more than sustenance.

It is not a “way of life”” for those

participating. (Holman, | think, makes the distinction clear in his book where

he compares the Kamba who poach, but who are not in the kind of symbiotic

relation to the animals as are, or were, the Liangulu who in fact are known

as “the Elephant People™.

Thomas also makes the distinction

“Modern

poaching falls into two separate categories.

The first is that of the man who

hunts solely to provide himself and his family with food.

This poaching also

provides an occupation.

The hunting though entirely serious, is probably

enjoyed and stimulates the interest of the hunter and is part of his way of

life.

Such hunting does little or no harm.

It is still part of the essential

economy of certain primitive tribes... It is the second category of poaching

which causes very considerably concern and this is poaching purely for profit

and commercial gain.

This type of poaching can again be sudivided into

two different classes—meat hunting and traffic in valuable trophies” (40).

In addition to poaching and the related illicit trades (receiving, for resale,

meat and trophies is the most obvious, but there are others including illegal

brewing—much of the poachers’ money goes for this; Holman remarked, in

fact, “It was to the palm wine tappers that most of the Liangulu hunters’

money eventually went.

The usual arrangement was that for 100 shillings

in advance a tapper would undertake to keep a hunter and two or three of

There are other activities such as illegal

his friends paralytic for a week” (41).

tree cutting (like illegal hunting, this may be related to other illicit activities ;

thus, in addition to illegal felling, three persons in Sumbawanga division,

southwestern Tanganyika, were prosecuted for illegally selling 1,000 poles

of timber to customers in Zambia—thus they had smuggled the wood into

Zambia (42).

One wonders if there was also any corruption involved in

getting the poles out of the country (43), and also if exchange control regula-

tions were violated !

The timber which is cut illegally can be sold for construc-

tion purposes [Mninga, for instance] or converted into charcoal for even

fire-wood) (44).

Another form of illegal hunting is fishing by explosives.

Although not thought to be widespread, it is apparently suficiently practised

to induce the Zanzibar Revolutionary Council to take preventive measures.

(Actually the law was aimed at ““fishermen using explosives or drag nets in

territorial waters’’,

Offenders are to be sentenced to five years imprisonment,

and vessels so used to be confiscated.) (45)

Another type of illegal hunting is collecting honey.

A report in The Natio-

nalist stated that in Ruaha National Park (south central Tanzania), “A 15-man

ranger patrol team operated in the area during the month to encounter

AL e

increasing bands of poachers, mainly honey-hunters, who constantly invaded

the park.” (46)

Thus one can see the wide range of illegal behaviour covered by the

category illegal hunting (and | have not discussed the obvious offences of

similar or related activities being carried on the which | have not alluded

In a country like Tanzania where, to the vast majority of the population, poor

as it is, almost any commodity is worth taking if it can be taken for nothing

and resold at even a small amount, one must expect a considerable amount

of offences of the type mentioned above

This is particularly true where the

agencies of law enforcement and resources protection are so greatly under-

manned (47), and where the spaces in which they operate are so vast and

difficult to traverse (48)

That the problem of illegal hunting is a serious one with relation to natio-

nal development has been recognized by various Governments officials, from

Parks officials and Judges to the Minister

most directly concerned with

such activity (49)

Nevertheless, we again see the need for review of policy,

and reform of law, particularly with regard to sanctions which, in view of the

seriousness for the country, the widespread violations occurring, and the

difficulties in apprehending and prosecuting, one would have thought were

far too lenient (50)

CRIME AND INVESTMENT

Where the commercial sector in a developing country is to a consi-

derable extent in the hands of a minority group

“If such members of ethnic

minorities feel themselves specifically insecure as potential victims of lawless-

ness, damage to development can be particularly pronounced

This

Is an

area where the effects of criminality, weak administration, protection of human

rights and protection of minorities are somewhat hazily inter-mingled, but the

situation can nevertheless be of crucial importance for the rate of development

prospects of a country.” (51)

More generally, “A state of insecurity of life and property induced by

high rates of criminality or a lack of effort by the government to control

criminality will also involve considerable indirect costs to the economy. A state

of insecurity is likely to result in unwillingness to take risks

It will also tend

to raise interest rates and involve higher insurance premiums and drive prices

higher because of the risk of pilferage, etc

Whatever specific forms these

indirect effects of insecurity may take, they all have the effect of increasing

the risk of developmental investment and of reducing the willingness of potenhal

investors to undertake any given degree of risk.” (52)

Another aspect of this general problem of insecurity and investment

particularly with regard to foreign investors, is the belief held from afar that

the governments will act more repressively in response to internal problems

-~ 9A8

—

of law and order, and perhaps turn to seizure of foreign assets as one method

of placating a populace that seems to be getting out of control.

And commen-

ting on a U.N. report regarding outflow of capital from developing coun-

tries (53), the U.N. Secretariat stated “It may be surmised that one important

reason is the belief of investors that their money will be safer elsewhere.

In this feeling of insecurity, probably the fear arbitrary acts by government

is a mere potent factor than the fear of the effects of criminality. However,

these two are inter-related.

A government which shows itself incapable of

enforcing sufficiently high standards of law and order, to that extent also fails

to inspire confidence that it will be capable of carrying out effective develop-

ment plans and development policies.

A state of insecurity will also influence

foreign investors so that the effects of an outlow of capital from developing

countries will be compounded by a reduced inflow of foreign capital.” (54)

Again lack of time and space prevent me from dealing with all of the

commercial crimes, to a considerable extent akin to ““white collar crime,”

which have a deleterious effect on organizational strength and individual

loyalty and initiative (55).

Another aspect of the effect on Development is

the opportunity cost of crime, which is the “‘loss of opportunity resulting from

having to divert resources from elsewhere.” (56)

Thus the large investment

in time, energy, finances which must go into the administration of nation in

terms of the opportunities foregone because of the need to stifle such crimes

as robbery with violence and other offences against property and or person

beginning to cause unease in the East African metropolitan centres particularly.

WHAT IS THE METHOD OF SOCIAL DEFENCE PLANNING ?

The literature on this subject is rather scarce, and though one has found

indications that considerable attention is being paid to the problem, mainly

under U.N. auspices (57), there are few guides to action, and therefore it

is the dual purpose of this paper to present some ideas for such planning, and

to evoke response from various quarters which will enable us to put Social

Defence planning squarely into the context of National Development planning.

I have put my ideas on the matter in writing in several earlier papers (58)

and will quote at length from the most recent one in order to indicate what

steps ought to be taken in the first intance

A. — Proposal

That a survey be conducted in order to establish the appropriate institu-

tional framework within which the following can most effectively be achieved

in Tanzania

1

Research into (a) crime and related social problems, and (b) the treatment

of offenders and others affected by those special problems.

o Ofp

2

Co-ordination and review of operational programmes relating to prisons,

police, social welfare and probation and the judiciary.

— Recommendation

B

That a Criminological Research Project be established in order to carry

out the above survey.

C. — Background to the survey

Co-ordinated research into basic causes, the nature and extent of deviant

behaviour is imperative if there is to be an effective campaign against

crime and related social problems in Tanzania.

In addition, there is an urgent need to establish channels of communi-

cation for the exchange and evaluation of date between those agencies

dealing with crime and related problems, and a form for discussion and

co-ordination of operational programmes.

In every country the limitations on time, money and expertise are such

that the government agencies directly involved are not able to undertake

such tasks of major research and co-ordination and review of complemen-

tary programmes directed against crime and for the treatment of offenders.

The experience of Tanzania has been similar to that of other countries,

and it is for the purpose of creating a new approach to the problem that

this paper is submitted.

There are probably a number of different types of schemes which could

be introduced. The purpose of such a study will be to create a structure

appropriate to Tanzania within which these activities can be carried on

and, most important, continuity maintained.

Thus far the University has been the major institution involved in crimino-

logical research but this has been a function subsidiary to the main purpose

of teaching.

Also, University research has been on an ad hoc basis,

depending on the interest and capacity of the particular lecturer employed

at the time.

It is suggested that the University has a role to play, but

cannot, by itself, fulfill the mission | have outlined above.

My preliminary view, based on experience in Tanzania and knowledge

of schemes in other countries, would be that it might be useful to establish

an Advisory Commission on Crime and Treatment of Offenders (ACTTO),

and that this commission would act in an advisory capacity to the Minister

of Home Affairs.

The Commission would have two basic functions : (1) to suggest new

solutions to the various social problems facing the country (e.g. crime generally,

prostitution, drug addiction, alcoholism, etc.) and to evaluate the old methods (2);

to act as a co-ordinating body, to gather, analyze and disseminate information

=0y

from various

involved

social

agencies

directly

(police,

judiciary,

prisons,

welfare) as well as indirectly involved (labour, economic affairs etc.) in order

established which would be subordinate to the Commission (ACCTO) and

that a co-ordinated attack on these social problems can be sustained.

In order to carry out these functions, a Research Unit ought to be

possibly based in the Legal Research Centre at the University, where manpower

would be availabe forme the Law Faculty, the Department of Sociology, and

related disciplines.”

Although in many under-developed countries, Tanzania included, there is

a fairly elaborate mechanism for economic planning, and perhaps planning

within other areas—such as education—there is little evidence that a similar

kind of planning exists in relation to deviant behaviour and related social

problems,

As | indicated earlier there are perhaps a number of reasons for

this situation, some of which are easily over-come, others which will perhaps

prove more intractable.

One of the first difficulties is that there is little general

realization of the need for a co-ordinated attack on such problems, and this

is to some extent because of the colonial legacy of using repression and little

else (also because the problems had not yet been aggravated because there

was litte development) ; again as a result of the colonial legacy there are few

if any trained personnel with a sound grasp of the nature of the general

problems ; following from this, perhaps, are a whole host of handicaps revolving

around the question of expatriate “‘experts.”

Thus in Tanzania suspicion was

aroused that the Criminologist at the University was becoming too much involved

in research into police matters and the prison service (59).

Such matters can,

of course, be seen as too sensitive for the security of the state and persons

within these organizations may feel disinclined to give information for fear of

being linked with subversion ; furthermore, persons outside the organizations

may be inclined to use the spy epithet for political advantage.

Which brings

us to another problem facing the would-be-planner in this area, and that is

political pressures generally.

A recent illustration would be the attempt by the

Tanzania government to do away with “strokes” or “corporal punishment.”

When the bill was introduced it met with a severaly hostile reception, and was

quickly withdrawn.

Thus although there is little to say in favour of corporal

punishment (60), and though it is, | should have thought, inconsistent with a

socialist ideology (61), the government has been forced to retain the punishment

for a wide range of offences.

Elsewhere | have referred to political pressures

in Uganda and Kenya with regard to robbery with violence and capital punish-

ment, and also the extreme measures taken by President Nyerere in relation

to cattle theft (62).

It is also the case that in the field of crime and punishment, everyone

is a do-it-yourself expert.

Very seldom can one find people who will admit to

ignorance about the causes of crime and the best ways of treating criminals.

Added to this is the often latent, sometimes open, anti-intellectualism that one

is apt to find within bureaucracies which have themselves a high proportion of

Of course one of the

personnel without academic experience at a higher level.

- 29 —

problems here is that there is consideroble doubt about how much positive

information we have at the moment about these matters !

Nevertheless it is

necessary to make a beginning, not to attempt too much, and to attempt to

educate the civil servants and politicians that, given a chance, the academic

can be of some assistance.

Another of the difficulties faced by the academic in this area is that not

only is his work not seen as being vital and urgent to Development from the

government side, foreign agencies of various types which have poured money

into political science, as an example, have not awakened to the need for

financial assistance to criminologist and related colleagues.

This is, of course,

a blessing in that, subject to the Tanzanian experience as a possible exception,

the view has not developed that criminology is a cover for neo-colonialist

machinations.

It is, of course, a good sign that the United Nations has taken

such an interest in this area, and has established a United Nations Social

Defence Research Institute which is to a considerable extent concerning itself

with the problems of deviant behaviour in developing countries (63).

Despite having many of the problems referred to above, some countries

of varying degrees of under-development have made some strides toward esta-

blishing a rational approach to the problem of crime and the treatment of

offenders.

Thus one can turn to countries as disparate as Japan, Cuba,

Yugoslavia, Egypt, Israel, the U.R.S.S., the United Kingdom, and the Scandi-

navian group, to find research Units and Criminological Institutes (64) which

have been established to try to develop a coherent programme.

A possible model for such an agency might be the Indian “Central

Bureau for Correctional Administration” which was set up in 1961 and began

to function with a small staff as a subordinate office of the Ministry of Home

Affairs (65).

The activities of the Bureau..., were to embrace the whole field

of social defence including jails and prisons, institutions for the detention, care

and protection, training and rehabilitation of children and adolescents, women

in moral dangers and vagrants.

Its functions were to include standardization

and collection of statistics, co-ordination of work and development of uniform

policy for the prevention of crime and treatment of offenders, exchange of

information between states, provision of technical knowledge and assistance

generally or on specific programmes, exchange of information between India

and foreign governments and with the United Nations and stimulating public

interest through publications (66).

This description, combined with an excerpt

from a report prepared by a United Nations expert, which originally recom-

mended the Bureau, gives the idea of what was thought to be need in India,

(although my own proposal outlined above is, | believe, wider in scope it may

be, particularly in the beginning, everly ambitious).

“It should be in a position

to give necessary help to states which want to develop juvenile courts, remand

homes,

certified schools,

probation services,

after-care service,

discharged

prisoners aid societies Borstals, jails, police lock-ups-all the agencies which

The Bureau should also be concerned

touch the juvenile and the adult offender.

in setting standards of care and service and preparing reports for distribution.

— 30 —

It should undertake to standardise the collection of statistics on the handling of

the juvenile and adult offender.

It should be in a position to do necessary

research,

It should be able to advise on specific programmes and even to

It should be in a

help install better and more uniform records and registers.

position to help functional designs and programmes to meet a certain objective

in a particular prison.

Borstal or certified schoo

1

In various papers (67)

over the last decade different authors have pointed out the need for dealing

with most of the matters indicated in the two excerpts above, but little if

anything has been accomplished thus far.

THE PROBLEM OF COSTING CRIME

One of the major difficulties in any attempt at planning with regard to

Social Defence relates to the difficulty of determining the cost of crime.

Plan-

ning of any sort involves some estimate of the size and nature of the problem

to be dealt with, and the cost of the problem, at least in general terms, so

that some estimate can be made of the amount of money which ought to be

assigned to the various agencies and institutions which will be dealing with the

problem.

This presents great problems in the field of Social Defence because

the data on crime in general, and also specifically are not very reliable (68),

and the cost of crime has seldom been considered except in a very simplistic

way in terms of agency expenditure (69) and value of property stolen (70).

As two British writers have commented “Crime... though frequently studied as

a social

and psychological phenomenon, has rarely been considered in terms

of its economic impact.” (71)

These same writers refer to the impact of the

work of Abel-Smith and Titmuss in influencing the development of the social

services in Britain by using techniques of social accounting (72), and make

an attempt in their Research Note to suggest the way in which the crime problem

can be evaluated in terms of the cost to the community.

There was one

outstanding attempt to do this by the Wickersham Committee, U.S.A., in

1931 (73), and there have been several other attempts to estimate the cost

of crime either on a similarly grand scale (74) or else in relation to specific

aspects of crime prevention and treatment of offenders (75).

Before any

effective planning can be attempted a research programme must be designed

which will give some clearer idea than we now have concerning the cost of

our efforts,

Some of the problems that would immediately arise are conceptual, or

1

definitional.

What

IS cos

f”

in the context.

Here, in addition to the “opportu-

nity”’ cost referred to above one would have to consider the economic damage

to citizen and victim and state.

A more difficult matter to deal with is *““econo-

mic transfers” that occur, i.e. theft from one person by another (76).

R e

SOME PROBLEMS OF METHODOLOGY

This, of course, is related to the matter of costing of crime but is also

a problem to be considered in relation to all aspects of Social Defence

planning based on research as it must be.

There has been litlle emperical

research on crime and related problems in East Africa, although there has

been some (77).

Clearly the interview will have to be used extensively and

this creates many problems (78).

A considerable amount of digging through

relevant papers, the paucity of which may cause considerable difficulty.

Questionnaires will again have to be used (79), and these can be extremely

difficult to work with (80).

There will, of course, be room for observation,

perhaps even participant observation if some use can be made of personnel

in the field as | have suggested elsewhere (81).

Many of the problems of this

type of research are, of course, related to conditions more or less common to

under-developed countries

a young and inexperienced bureaucracy which

has little training models for collecting data, and probably little appreciation

at this stage of the necessity for information.

In Tanzania the latest publi-

shed Police Report is for 1964, and other agencies are at about the same

point in making material available.

One possible use for University under-

graduates studying in social sciences generally would be to act as a Task

Force with regular working assignments in these organizations in order to get

information processed and in usable form (82).

Another problem of methodology is the need for comparative studies bet-

ween countries with similar problems and backgrounds.

The mechanism for

organizing comparative and joint studies will remain a prime problem in deve-

loping methods which can realize effective results in different areas (83).

A problem which is also related to the next topic, the machinery of

planning, concerns the need to convince the agencies concerned that a parti-

cular problem is of importance and perhaps more so in the long run than

doing what is in effect very short term work for that agency.

(It can be

argued that if an agency wishes such research to be done that the personnel

of such a planning unit as | have in mind ought to carry out the assignment

in order to create good will, trust and confidence).

Also, certain methods

may, at times, be objectionable to some agency and therefore alternative

methods must be developed (and probably at least worked out in general in

advance so that the reluctant agency will have an alternative choice in which

case a negative decision might be more difficult to announce).

A strategic problem of methodology will, of course, be financial. And

one method of cutting down on the financial burden of the project is to con-

sider what needs are essential, and which can be allowed to stand in line

for another years blessing.

Another point to take an example from Tanzania,

one might mention the destitutes which are a considerable problem in most

towns of size and particularly Dar es Salaam (84).

As has been suggested

by several writers (85), consideration ought to be given to the available

39 —

resources relating to alternative agencies and the burden on the state.

Thus

it becomes a question of defining the problem in temps of who can best

handle it—is it criminal and thus the police will deal with it, or else it might

be called a Welfare matter and thus dealt with by them.

It is also the case

that the smaller area of social control designated to a social agency, the

better the control it can achieve (86).

THE MACHINERY FOR PLANNING

The question remains then, and perhaps this is very much one for an

“interdisciplinarian” rather than a criminologist, what is the optimum type

and size of planning unit—if indeed a separate unit is thought to be the

owner—what should be

its

relationship to such government Ministries as

Home Affairs (Justice and Economics) Planning, who should be members, and

what should be the relationship to the University, if any (87).

Although there have been views expressed to the contrary (88), | believe

a permanent separate unit is necessary in order to insure continuity and cohe-

rence in planning.

It may be that given the constraints of personnel and

finance obtaining in East Africa that the unit would, in the first instance, be

small and limited, perhaps, to some -part-fime personnel whose main job lay

elsewhere, though in the same general field.

But | believe there must be a

recognized agency with designated responsibility for planning as | have out-

lined it in my Proposal above.

Without such a unit it is likely to happen

that most decisions will be taken with only occasional ad hoc reference to

any outside agency such as the University departements directly concerned.

This, of course would, at least, result in un-co-ordinated ad hoc decisions

across the broad field of Social Defence work, a situation that, in effect,

exists today in many countries, “developed” and developing.

It seems to me that the core problem is the relationship of the unit to

the relevant government ministries.

Having

solved

that primary question

much of the rest falls into place.

The need here is to have a body with

authority in the sense that it is a known and felt presence that will be relied

upon under

normal

circumstances to provide date,

guidelinos,

suggested

reforms in legislation, and fulfill the other functions outlined in my Proposal.

I believe it must not be connected with the University in the sense that it is

entirely a University entity, for if this should be the coase then the schism

will develop between government and “the Academics” to which | have refer-

red above.

Also, as D.N. Ray, an authority in this area has stated “A

purely voluntary organization or an academic body may have difficulties in

providing leadership in respect of practical policies and may fail to command

professional respect where introduction of techniques is concerned.” (89)

Nevertheless there ought to be University participation for a number of

reasons.

First because | believe that Universities should be functionally inter-

s 133N

&

connected with government to a considerable extent, particularly in a Socia-

list country.

Second, it is unlikely that persons capable of this type of work

will be plentiful, and if available they are likely to be connected with the

University, at least in the beginning.

(Through training programmes to be set

up, other personnel would be recruited to the number who might do such

work.)

Third, persons in the University are likely to have more time to

devote to such a project.

Fourth, such persons will be less subjected to poli-

tical and careerist pressures which normally affect persons within the govern-

ment.

Fifth, persons from outside the relevant government ministries will be

relatively freer from the special interests in certain projects which often grip

persons directly involved in policy making and perhaps even more so, imple-

mentation of policy.

To quote Ray again in the contexte of his comments concerning leader-

ship in Social Defence planning ““A similar consideration may apply to some

extent to a situation in which the leadership of the organization is placed in

the hands of persons not belonging to the profession.

Such a course might

have the effect of inhibiting professional interest among those working in the

field and defeat one of its main purposes.” (90)

Thus there is a real need

to balance academic representation with persons familiar with the problems

through direct experience in the field.

I have found that in lecturing in

middle level police and probation officers’ training programmes | was able to

learn a considerable amount about crime problems, problems of probation

and other sanctions, problems of organizational conflict in the field, about

much of which | had had no idea.

Though the main unit would be in part made up of University personnel,

and professionals with field experience there also ought to be fairly high-

level personnel from the ministries and departments directly concerned. These

should be high level (and have other notable qualities) but should not be the

top level people who have little time to involve themselves in such work,

and in some cases might not be able to take a brader view because of con-

cern for their own division.

And one possible benefit is that participation

in such a unit for several years will develop in a number of young juniors,

a progessive and broad-horizoned, plan-oriented approach to the problems

of Social Defence.

Ray again has some valuable thoughts on this, “It may

be useful to build up a system of inter-change of personnel between such an

organization on the one hand and the various services and universities on

the wider perspective.”) (91)

To some extent this would also make possible

the development of personnel who could be inter-chanber within the various

government ministries thus providing the flexibility which is so valuable to

government efficiency and general continuity.

It is my view that the main unit should be a working body, and not

simply a “Council” which rubber-stamps what others have done, nor a group

that gets together occassionally to “solve a problem”.

Nevertheless it should

not be directly involved in research.

The research activity should be direc-

ted by the main unit.

In fact it is this unit which should determine all research

R CCYR A

priorities in the relevant field (92), and should have the authority to encou-

rage appropriate personnel, local or from abroad, in whatever manner deemed

desirable and efficient (93) to carry out research for the government.

(This

authority would unnecessarily extend to the University, of course).

And the

other side of the coin would be the authority to reject research plans which

were not considered relevant to the problems as seen by the unit until lately

there had been little of this kind of direction or co-ordination of research

in this area in Tanzania (94), and there had been little effective research

until the last year when strenuous efforts were made to involve the Univer-

sity in research (95), and some rather promising results were achieved (96).

Significantly the University has now been asked to carry out an extremely

interesting research project by the Ministry of Home Affairs, the first time,

| believe that this has occurred in relation to such social problems (97).

The actual research ought to be carried out by the University and there

is of course a precedent for this in Tanzania i. e

the Economic Research

Bureau (98).

In my proposal | indicate that this function might best be filled

within the Legal Research Centre in Tanzania.

Perhaps as a law trained

criminologist my natural

pre-dilection is for law oriented criminology but

I think that a strong case be made for basing the teaching of criminology and

criminological research in a law faculty (99).

| believe it is a particularly

valid approach in a developing country where law graduates are going

directly onto the bench and into the Attorney-Generals’ Chambers as well

as into the police, into the prison service, and into probation work.

Ultimately

also, as in most other countries, a fairly high proportion of legislators will be

law trained, and it is imperative that they should have a solid basis in crimino-

logy- and related subjects if they are be called upon to pass on legislation

dealing with such matters.

| also believe that allowing lawyers a strong

role in criminological developments tends to prevent the domination of the

subject by one of the other disciplines and thus gives a better balanced

approach,

It also serves to make law studies more coherent by putting norms

and sanctions in context (100).

Whatever the theoretical merits of the case, the presently existing Legal

Research Centre in Tanzania is a logical centre for the kind of research about

which | have been writing and which | have discussed at greater length el-

sewhere (101).

There are some other advantages in locating the research team at the

University. Again, it breaks down the schism between government and Univer-

sity, it means that much more man-power can be effectively vitlized, including

undergraduates, graduates, research fellows from abroad, and visiting acade-

mics.

The research facilities, of course, at the Centre and the University

Library, are unequalled elsewhere in Tanzania, perhaps in East African.

(1

realize that the Makerere Institute of Social Research might be the more

appropriate body in Uganda, although it is possible that the Law Development

Centre could evolve as a strong rival).

The

The agenda for research is of course practically limitless (102).

main priority must be given to the problem of determining the extent and nature

of deviance in general and crime specifically.

Unreported crime is one of the

biggest problems facing criminologists throughout the world, and the situation

is no different in East Africa (103).

Methods must be developed by which the

amount of crime especially, but also other aspects of criminal behaviour,

become much more accurately known to us.

Robbery, and particularly that accompanied by violence, is a crime that

especially arouses the ire of citizens, and so contributes to demands from the

public for vengeance or retaliation.

Such public feeling often

results

in

distortions in the system of justice, especially the sanctions being applied.

Rural crime such as stock theft and poaching is an immensely important

area for study, especially in light of the fact that an over-whelming proportion

of the population are in that area and in East Africa Development depends

to a great extent on rural stability. Also it will aid in evaluating different

over-all social policies within a country and between countries.

As indicated above,

corruption and white collar crime,

both mainly

urban crimes, are extremely high on the priority last.

Deviant behaviour such as addiction to drugs or alcohol, and prostitution,

must also be dealt with because of their widespread state, apparently increa-

sing rate, and deleterious effect on Development.

I have suggested a number of other areas for research elsewhere concer-

ning administration of justice, police, and prisons (104).

Finally, one of the

urgent needs today in regard to social control and Development is to test

not only penological

methods of treatment,

but also various

sanctioning

devices (105), both negative and positive (106).

THE RELATIONSHIP OF THE MAIN PLANNING UNIT TO GOVERNMENT

In my Proposal | indicated that there should be an Advisory Commission

which would be in a staff relationship within the Ministry of Home Affairs

(which in Tanzania deals with most Social Defence matters).

In relation to

Tanzania we run into some difficulty in keeping a neat and comprehensive

planning tableau because an important section, Social Welfare and Probation,

is in another Ministry (107).

Nevertheless, this problem of organization tidiness

could be overcome by shifting Social Welfare and Probation into Home

Affairs, or by a re-grouping of a more imaginative sort, or simply by putting

the Commission in an organizational position midway between the two.

As

Ray points out “Its organizational set-up may, therefore, have to be impro-

He then continues “In

vised specially to meet its particular requirements.”

a relatively small country with a unitary set-up of government, the necessary

— 36 —

co-ordination of various agencies, determination of social policies and planned

development may perhaps be achieved to a great extent within a departmental

set-up at the governmental level.

The needs of public co-operation, expert

advice, any continuity in policies may still justify some sort of an advisory

body attached to such a department.

Even where there is such a cell within

a Department, for the evaluation of the work done or of the studies made,

it may be advantageous to have an outside agency to assist (108).

Thus | have seen planning in respect to Social Defence as a matter first

of concentrating on all aspects of Social Defence in order to attempt to draw

up a plan which would in effect be part of the submissions by the relevant

Ministry, or Ministries, to the national over-all planning authority, and which

would be dove-tailed into the major Five Year Plan or its equivalent.

This is

somewhat similar to one of the alternatives suggested by another authority,

William Clifford, who suggests that “‘a planning authority could appoint an

expert or appoint a subcommittee or specialists to study the problem and

prepare a national plan for crime prevention.

This plan could then be sent

out to ministries, local governments and industrial or voluntary bodies for

consideration and comment.

The planning authority could subsequently prepare

its national plan in the light of the experts or the subcommittee’s work and the

comments that it had aroused.

This might be a more appropriate and could

be a more efficient procedure in some cases, but the merit of the first and

slower process (see below) of inviting recommendations from below before

the plan is prepared is that the different authorities are more fully involved

and are likely to have more interest in the implementation of a scheme with

which they have been intimately concerned” (109).

Clifford's alternative suggestion is perhaps the most interesting and possi-

bly theoretically the most effective.

There is much to recommend it, particu-

larly his ideas about co-operative effort, or what might be called *“partici-

patory democracy.”

Although | have views on this subject similar to his, |

am not convinced that his suggestion is viablle.

Nevertheless | will it forward

as a radically different way of approaching the problem of Social Defence

planning.

After describing the general machinery of overall planning which

exists with variations, in most “planning counties,” he continues.

“If crime prevention is to be integrated into this process then decisions

will need to be made as to the levels at which the recommendation should

be accepted.

It is important that crime prevention should not be considered

as a specialist area or the concern only of those experts and officials actually

studying, or practically involved in, the prevention and treatment of crime.

Thus, it would be limiting and inadequate to consider only the views of aca-

demic experts from the universities and, or the recommendations of those minis-

tries concerned with the police, the prisons and the social services.

Everyone

is in contact with crime to some extent or in some way : and since everyone

should be involved in the prevention of crime and corruption, the views of

other ministries, other departments, other experts, voluntary bodies, industries

and commercial interests as well as local authorities should be solicited.

The

— 37 —

local authorities are especially important where they carry responsibility for

some of the services which are in the crime prevention field. Where it is the

practice to invite different ministries and authorities to submit development

plans, they should be asked to incorporate provisions for the prevention of

crime or for the prevention of illegalities which have been a trouble to them

in the past.

A planning authority would be unwise to seek plans, views or recom-

mendations of this kind without first providing a document to show exactly

the way in which crime is viewed by the planning authority itself (e.g., what

Guidance

is included and excluded) and what it understands by prevention.

should thus be given as to the scope of the information that is required,

otherwise a great deal of time is likely to be lost sifting the chaff from the

wheat.

No doubt most countries will be able to employ expert help to assist

in the preparation of a document of this kind—or will be able to solicit it as

bilateral or international aid.

Perhaps the first part of any submission by a ministry or local authority,

industry or voluntary body should consist of a survey of the types of crime or

illegal behaviour with which it is concerned, itemizing the difficulties expe-

rienced in the past and quantifying as far as possible the extent of the problem.

Organizations not usually concerned with crime still lose materials by theft

or fraud or are troubled by illegal or unethical practices.

They might be

asked to consider these in relation to their effect on the total operation of the

service or department for which they are responsible.

Subsequent parts of

the submission could then deal with problems of prevention and control and

with recommendations for the future.

Those submitting recommendations should

be encouraged to assess the value of existing services dealing with crime and

to detail the cost involved and the benefits sought from the practical sugges-

tions they make.

Theorizing and speculating should be discouraged, and these

will in any case be limited if the document provided for guidance includes

a review of present knowledge about crime, indicates likely areas for preven-

tive attention and calls for specific and itemized recommendations.

When material of this kind has been collected it could be submitted by

the planning authority to a special subcommittee strengthened by the appoint-

ment of local experts, ministry officials concerned with crime and criminals,

statisticians and administrators.

It would then be the task of this group to

evaluate the opinions or recommendations received, to assign priorities and

to draw up a national plan for crime prevention.

At this state the planning

authority might consider the report of its subcommittee while at the same time

seeking the subcommittee’s views on the possible criminal implications of the

broad outline of the total national plan for economic and social development.

The planning authority would in this case have a second report of its subcom-

mittee to consider before making its final allocations of national resources

That is to say, it would be supplied with a crime prevention plan and an

expert view as to the crime implications of the proposed allocations of resources.

e, CYae s

This is one way of incorporating crime prevention into national planning

and it will be seen that it depends very largely upon submissions from the

It presupposes

different levels of government and economic or social life.

planning from the bottom upwards after general directions have been given (110).

Even in Clifford’s proposal, however, there is still room for a main unit of a

type similar to that which | have suggested, and of course for a research

unit outside the planning mechanism.

CONCLUSION

Although the statistics on crime in Tanzania are not reliable (111), and

although a clear trend since independence is difficult to ascertain and

assess (112), it does seem clear that crime is increasing at a fair rate in the

country (mainland Tanzania is here referred to, indications from various sources

are that there is no such increase in Zanzibar (113), which is a situation that

entices the criminologists in view of the profound changes which are apparently

occurring there).

Such an increase is to be expected in a developing country

as Clinard has pointed out (114) and as Clifford explains “Crime... may

not be created by development but it is fostered by such consequences of

development as the atomization of the family, the social effects of urbaniza-

tion, and the public approbation of self-seeking and wealth-accumulation.”

(115)

At the present time criminologists may not know enough about specific

forms of deviant behaviour, and their causes, but “enough is known from

various sudies in the broad field of the social disciplines to be able to put

together what is known about the general nature of society and the general

causes of crime and delinquency, as a starting point and a general frame-

Fur-

work within which strategies of social defence could be evolved (116).

ther, to quote from a United Nations paper on Social Defence “It follows

that criminal behaviour must not be regarded as an isolated field of interest

to be studied in vacuo.

Interdisciplinary research is required to throw light

on the structural strength and weaknesses of society, on the functioning of

groups within it, and on the social forces which are continually reshaping

the behavioural patterns of individuals within that society (117).

It also points

out that “the development of social defence policies cannot however, wait for

the results of such interdisciplinary research, particularly since the cost of

crime and delinquency is increasingly imposing a heavy burden on the na-

tional economy.

Strategies for the prevention and control of crime and delin-

quency must therefore be so devised as to cope with the problem despite the

limited knowledge we have of its causation.

These strategies could be pro-

gressively refined by interdisciplinary etiological research.

Meanwhile, they

should serve to contain the problem by loosening the web of circumstance

that bears on the occurrene of crime and Delinquency.” (118)

b | VY et

It is for the purpose of delineacting the problem areas, defining the

research needs and techniques, suggesting policy aiding in implementing pro-

grammes, reviewing policy and programmes, co-ordinating efforts directly and

indirectly related to social problems of deviant behaviour, that | have sugges-

ted the creation of some institutional framework.

This kind of co-ordinated

approach to Social Defence is necessary in any Society, but as | have argued,

it is particularly needed in the context of national Development planning.

Thus “Planning for social defence is a part of total planning for social change.

It involves anticipation of the consequences of social change in terms of the

causes and technics (sic) of formation of various social groups, the conse-

quences and techniques of reation of members of social groups to social

exclusion in the general process of change, and the use of techniques for

the continual reintegration of various groups into society” (119).

Although the argument put forward in this paper has tended to be

from the point of view of improving Development through including in plan-

ning a consideration of Social Defence matters (“Development will be more

wholesome if the prevention of crime is an equal objective of national plan-

ning” [1201) there is also the reciprocal benefit to be gained by those direc-

tly responsible for Social Defence policy and implementation.

Thus “Properly

conceived, the integration of crime prevention into national planning will not

only serve to improve the yield from planning but will improve the efficacy

of the crime prevention measures and services themselves by making them more

planning-conscious.

There are all kinds of ways in which youth services,

prison labour, extra-mural work and informal education could be geared to

programmes in the national plan designed to develop the country.

The buil-

ding of dams and roads, the clearing of forests, the digging of irrigational

systems and the unprominent of communications could be undertaken by youth

groups formed to give wholesome activities to the unemployed and so reduce

crime.

Developmental work of this kind could offer opportunities for prisoners

and parolees to contribute constructively to the growth of the national eco-

nomy.

Community groups formed to deal with crime could achieve their

objects by fostering development schemes.

If crime and devlopment are

linked detrimentally, crime prevention and development could well be linked

constructively.” (121)

| have commented elsewhere on the many possibilities

for relating sanctions and treatment to Development, and even to national

security, and political consciousness (122).

Financing Social Defence has been a bugbear in most countries over the

centuries, and in fact was at some points in history turned over to private

enterprise with the expected results for both shareholders and consumers (123).

The basic problem is that Social Defence has remained one of the excluded

items in the basic economic calculus, and has suffered thereby.

The result

has been that emphasis has been placed on narrow aspects of prevention or

micro-prevention, i.e. repression through police and the courts, and the less

What is needed is more

imaginative forms of treatment i.e. imprisonment.

attention to dlternative forms of micro-prevention (for instance the use of 10

house cell leaders, elders, Tanu, T.Y.L. and other groups (such as the working

— 40 —

unit) the main forms of macro-prevention (education training, employment,

political orientation) and to alternatives to imprisonment, including positive

sanctions (124).

However it remains to be said in relation to the problem of

financing that “The ultimate goal in social defence is to absorb its costs in

general development costs, “because” the condition that social defence costs

must ultimately be absorbed in general development costs is very important

since there is a general tendency when considering resources for social-as

distinct from economic-planning and the uses of such resources, to think in

terms of more taxpayers' money for the financing of social development

schemes”.

Admittedly this problem has not been so aggravated in Tanzania

where, for instance, instead of relying on such sources of funds, the Prison

Service has to a considerable extent become self-reliant (125).

(This, of

course, has been said to be part of prisoner rehabilitation, but whether this

is in fact the case is open to doubt.) (126)

Finally, the mechanism for Social Defence planning in the context of

National Development requires consideration from many angles.

That there

must be a permanent, high level agency of some kind is, | think, imperative.

It would seem ideal to have lower-level bureaux of some kind, as Clifford

has remarked in regard to planning generally “It would seem advisable for

development planning to be based on procedures which make the fullest

possible use of co-operation and. group effort in production (127).

From

another writer involved in India's planning, comes the final word.”

In India,

as perhaps in many other countries, there is little public appreciation of the

nature and scope of social defence work.

The effectiveness of social defence

programmes such as probation, aftercare services and suppression of immoral

traffic in women and children depends to a large extent on the understanding

and co-operation of the public.

An uninformed and indifferent public hampers

and often negates the work of the most highly trained and devoted personnel.

It would seem, therefore, that in India, special attention must be paid to the

problem of utilising the public in the service of social defence.” (128)

e

FOOTNOTES

(1) United Nations Secretariat

«Social Defence in the context of National Development»

25 International Review of Criminal Policy 3 (1967)

(This article will hereafter be

cited as U.N. Secretariat, 25 IR.C.P

The Journal itself will hereafter be cited

as LR.C.P

(2) Ibid. See also in the same issue, CLIFFORD

«Crime and Development Planning»,

a discussion

at p. 9; WiLLiamMs

«Crime Prevention and costs in national planning

CARNEY

of concepts and issues»

at p. 21

«Social Defence perspective in deve-

lopment planning with special reference to Africa», at p. 29 ; GRYGIER

«Research as

a basis of planning in the social defence field», at p. 61

See Ray

« The need

for a national agency to promote sound policies for the prevention of crim

treatment of offenders, with particular reference to India»,

3 I.R.C.P. 31 (1965).

And

see CLIFFORD

«Training for Crime Control in the Context of National Development»,

24 LR.C.P.

(1966) ;

«The Evaluation of Methods used for

e Prevention

Treatment of Iuvemle Delinquency in Africa south of the Sahara», 21 I.LR.C.P. 17 (1963).

(3) BOEHRINGER, Some Preliminary Thoughts on a Socialist Penology (1969) (unpublished,

mimeo, Faculty of Law, Dar es Salaam. Hereafter referre

to as Socialist Penology) ;

Developments in Cnmmology in Tanzania (1969)

(unpublished, mimeo,

Faculty of

Law, Dar es Salaam. Hereafter referred to as Developments in Cnmmology)

(4) For perhaps the most comprehensive bibliography concerning crime and related

issues in the East African context, see Developments in Criminology.

5) BOEHEINGER Alternatives to Prison in East Africa (1969)

unpublished, mimeo, Faculty

f Law, Dar es Salaam. Hereafter referred to as

Al

ternatives to Prisons).

The

Trafhc Problem as ‘a Crime Problem (1969) (unpublmhed paper, mimeo, Faculty of

aw,

ar es Salaam).

See also TANNER

«Rural Crime in East

rica, Some Theore-

tical Issues», R

aper No 34 (1966)

(Makerere Institute of Social Research

Kampala)

On the question of corruption, see n.

8 infra

(6) See e.g. HurcHinsOoN (ed), Africa and Law (Madison, Wisc ; University of Wisconsin

Press,

1968) and especially the fundamental article of Prof

SEIDMAN

«Law and

Economic Development in Independent, English Speaking, sub-Saharan Africa.»

(7) In addition to the work of SEIDMAN, supra, n. 6, see SAWYERR (ed.), East African Law

and Social Change (Nairobi

East African Publxshmg House, 1969

(7 a) The outstandmg exception would seem to be Cost «Penal Pollcy and Under-

development in French Africa» in MiLNER (ed.) African Penal Systems (London

Routledge and Kegan Paul,

1969).

(8) See e.g. Kiapr1

«Legal Control of Official Corruption in Afrlcc» (Paper presented to

1969

LANI

«White Collar

the University Social Science Conference, Kampala,

MEKINDI

Crime» (mimeo, Faculty of Law, Dar es Salacm, 1969) cmd materials cited therein ;

«White Collar Crime» (Studem Essay paper, Faculty of Law, Dar es Salaam,

1969) ;

MwAPACHU

«The Nature of the Concept of White Collar Crime and its

validity in East Africa» (mimeo, Faculty of Law, Dar es Salaam, 1969).

See also

SEIDMAN

«Constitutions in Independent

Anglophone

Sub-Saharien Africa

Form

and Legitimacy» (mimeo, Paper Presented to a joint seminar of the Economic Research

Bureau and the Faculty of Law, Dar es Salaam, 1968) and references therein. This

paper is also found in (1969) Wisc. L. Rev. 83

I have had the opportunity of reading

a paper to be presented to this conference by Dr.

John SauL

«Marketing Co-

operatives in Tanzania» where he discusses at some length the problem of corruption

in the co-operative movement.

(9) U.N. Secretariat, 25 I.R.C.P. 6, CLIFFoRD, ibid, 9-10.

(10) See the most comprehensive discussion of the concept in ANcEL, Social Defence

(London

Routledge and Kegan Paul, 1

(11) With the establishment of the United Ncmons Social Defence Research Institute

n

ome.

(12) See such traditional Americon text, as SuTHERLAND and CRESSEY, Princi]

les of Crimi-

nology (New York

Lippincott, '7th ed.,

1966) ;

chxu:ss

The

rime Problem

(New York

Appleton-Century-Crofts,

Inc

3rd ed.,

1)

However there are

several texts which have attempted to go further

see KORN an

CcCUORKLE,

Criminology and Penolo

y (New York

Holt,

Rinehart and Winston,

Inc

1

)

toward putting crime an

%

treatment in full context.

The basic British text, WALKER,

Crime and Punishment in Britain (Edinburgh

traditional and therefore narrowly conceived. On the other hand the two volume

University Press,

1965)

is very

Paul,

reference set by MannHEIM, Comparative Criminology (London

Routledge and Kegan

1967) ;

as far as it goes, is a wide-ranging work.

(13) See e.g. CLiNARD, Sociology of Deviant Behaviour (New York :

Holt, Rinehart and

Winston, Inc.) ;

CLINARD (ed.), Anomie and Deviant Behaviour (New York the Free

Press,

1964) ;

LEMERT,

Human Deviance,

Social

roblems

and Social Control

(Englewood Cliffs, New Jersey

Prentice-Hall Inc.

1961)

AT it

(14) GoLp and ScarritTi (ed.), Combatting Social Problems (New York : Holt, Rinehart

and Winston, 1967).

(15)

See BOEHRINGER, Alternatives to Prison.

See dalso the same author’'s, Socialist Peno-

ogy and Developments in Criminology.

(16)

CLIFFORD

I

«Problems in Criminological Research in Africa South of the Saharan,

in Central

Africa» in GRYGIER (ed.)

11;

«Crime and Criminology

Criminology in Transition (London

Tavistock,

1965).

(17)

Although such a distinguished criminologist as ReckLess used the term for his

text in 1961 (see, supra, n

12) it is not a pleasing term.

It is, unfortunately, a

favourite of politicians and journalists, and tends to be used as a slogan which

isolates the sympton from causes, cures and prevention.

(18)

See CLiNARD, Poverty, Development and Deviance (mimeo, Faculty of Law, Dar es

alaam, originally given at a sociology workshop at Makerere University, Kampala,

August 1968).

And see Cuirrorp, 25 I.R.C.P., 9-10.

(19)

See Fanon's comments in The wretched of the Earth on the colonial legacy and

crime causation.

See also Taft, supra, n

(20)

I would suppose that al aspects of what might be closely termed «geography» have

een investigated in relation to crime.

‘Work by such as Lorentz, ANDREY and RusseLL

in relation to space and aggression immediately comes to mind. Probably the best

guide to the literature is MORRIs,

The Criminal Area (London

Routledge and

egan Paul, 1964).

(21)

I think TAPT, supra, n

is also good.

12, is best on this, MannHEIM in Comparative Criminology

(22)

Again see TAFT, supra, n

12, ond MAaNNHEIM, ibid.

(23)

Thus traditional practices are said to account for stock theft and homicide amongst

certain tribes in Tanzemia, (TANNER

«Cattle Theft in Musoma, 65 Tanzania Notes and

Records,

31

(1966),

and deviant sexual practices amongst coastal people (see

ANNER

«Sex Behind», 27 Transition (Kampala, 1966).

(24

=

See the classic study by the Marxist BoNGeEr, Criminality and Economic Conditions

(Boston

Little Brown and Company, 1916) ; and see the most interesting political

historical study by GARNSEY

«Why Penal Laws Become Harsher

The Roman Casen»,

in 13 Natural Law Forum, 141 (1968) whose inspiration came, of course, from the

work of DURKHEMM and

ONTESCUIEU, see also RuscHE and KIRCHHEIMER, Punishment

and Social Structure (New York : Columbia University Press, 1939).

(25

-

It would seem that the age of the population is important in determining the

amount of crime and the nature of the crime.

uch work has, of course, been

done by those working with statistics to show who commits what kinds of crime.

But I don't know of any study which has attempted to compare two countries

with vastly different age-average populations to see if and how the crime rates

differed.

(26)

Cuirrorp, 25 I.R.C.P., 9-10.

(27)

Ibid, 00.

(28)

As for academics, n. 8, supra.

In the Press, and by Government, see e.g. «Corrup-

tion Rife in Kenya», report of a speech by Mr. Njojo, Attorney-

General of Kenya,

in The Nationalist, 14 Dec. 1968.

Of course, corruption in the co-operative has

been a constant problem in Tanzamia,

see on corruption in East Africa generally,

Kiaca

«Law ond Politics of Corruptio:

n in East Africa» (Occasional paper, Legal

Research Centre, University College,

Dar es Salaam,

1969).

(29)

See LEFT

« Economic development through Bureaucratic Corruption», American

Behavioural Scientist (Nov. 1966) ; BAYLEY

«The Effects of Corruption in a Deve-

loping Nation»,

19 West.

Pol.

Q. 719 (1966) ;

NYE

«Corruption and Political

Development, A Cost-Benefit Analysis», Am. Pol. Sci. Rev. (Summer, 1967) ; Levs

«What is the Problem About Corruption» 3 J. Mod. Af. Stud., 215 (1965).

(30) See e.g. editorial

«Violence on the Beach», The Standard (Tanzani

e present writer was himself the victim of a fairly serious theft on a Bar

a), 12 Sept. 1983.

(31)

BoenRINGER, The Traffic Problem as a

Crime Problem (Mimeo, Faculty or Law, Dar es

Salaam, 1968).

(32) Within the last year in Tanzania we have lost the Managing Director of one

of the top automobile agencies

, the number two man at the rival agency, a top

engineer in an important maritime agency,

several top personnel from the banking

East Africa),

field, a resident Magistrate (one of the

and a number of teachers

early law graduates of the University of

and others in whom the country ha

invested considerable resources,

or who could greatly assist in a developing

economy.

(32 a) See a report of a speech by Tanzemia’s Minister for Tourism

vary the economy», The Standard, 10 November 1969,

«Tourism to help

gl

(33) See e.g.

«Developments in Criminology », footnotes 16-18, on stock theft.

See

also CosTa

«Penal Policy and Under-development in French African, in Milner (ed.),

African Penal Systems (London : Routledge and Kegan Paul, 1969), for a discussion

of French or French influenced penal policy in relation to the problem of stock

theft, and other development-impending deviance.

Smuggling is an old problem in this coastal part of Africa, and it is said that

whereas before many items were smuggled into Kenya and Tonganyika from

Zanzibar and Pemba just the reverse in happening today due to the differing

economic policies of the different jurisdictions.

It is also the case that smuggling

is apparently going on within Tanganyika, in that there are, contrary to ordinances,

illegal movements of agricultural goods from one section to another.

See

«Field

Force Helps End Pare Rice Smuggling», Sunday News, 2 March 1969.

There is

also said to be considerable smuggling of coffee into Burundi; see

«Smuggling of

Coifee Decreases», in The Standard, 2nd April 1969.

Recently there has been a spate of gemstone smuggling out of Tanzamia into

Kenya, and a number of arrests by Police in an attempt to keep this activity under

control.

See

«Police Clamp on Arusha Gem Smugglers», The Standard, 16 August

1969, in which it is announced a special gemstone Unit was set up by the Regional

Police Commander.

And see

«Police Probe Gems Racket», The Standard, 21 Octo-

ber 1969.

In another report

«Patel Brothers aid police in gems inquiry», Sunday

News, 17 August 1969, it is reported that police were investigating «a vast inter-

national gemstone racket» assisted by the men named. Finally see

«Smuggling»

(an editorial), The Nationalist, 16 October 1969, and «Borders will be Fortified»,

The Nationalist, 15 October 1969, in which the Minister for Home Affairs stated

that «smuggling is a threat to the national economy».

(34)

See THOMAS

«Illegal Hunting in Tanganyika», 61 Tanganyika Notes and Records, 1

1963).

(35) Published police data is not very helpful for several reasons.

The last report is

964, and there is no breakdown of crime into rural or urban categories, nor into

sufficiently categories to be able to separate rural from urban crime.

(

is is

not to mention the definitional difficulty of distinguishing between the

two.)

Although one finds that cattle theft is a separate category,

ere is no category

for illegal hunting, and related illegal activities.

Illlegal hunting is simply put

into the general category of «Other Statutory Offences».

(One would fare better

perhaps by turning to Judiciary reports which were not available to me at the

time of writing.

Prison statistics are of little use because they are not very

complete, and aiso a few years out of date.)

Perhaps the best source of infor-

mation on the subject is the Press, which in turn gets most o

its ~information

Thus lhe Standard reported, in an

article entitled

from reports filed by National Park Wardens.

7 October

1969,

that

«The

«Appalling Butchery in Serengetin,

present scale of poachin

in men and vehicles wil

f

gives grave cause for concern and much greater strength

riceless

be needed in the years ahead if the Serengeti's

arden.

heritage of wildlife is to survive», quoting Mr.

Field, Chief Park

See also an article by Eric Rosins

«Five States Co-operate to combat Poaching»,

East African Standard, 6 October 1969, describing the setting up of an «Animal

Interpol» in East and Central Africa.

(36) See BOEHRINGER, Developments in Criminology (p 99), for the figures on cattle theft

(true offences in 1964 : 2,081 and in 1967 : 2,257).

But as I point out (p. 92-7) there

n

are many reasons why these data should not be accepted as being accurate.

see the footnotes in that paper (nos. 16, 17, 18 and 78) where I discuss the nature

and scope of cattle theft in Tanzania. See also TaANNER

«Cattle Theft in Musoman,

65 Tanzania Notes and Records, 31 (1966) ; and «Rural Crime in East Africa - Some

Theoretical Issues», R.D.R.,

aper No. 34 (Kampala

Makerere Institute of Social

Research, 1966).

And see Read's discussion of the critical situation in Karamoja

district, Uganda in «Some Aspects of Murder in East Africa», 1 E.A.L.J., 37, p. 54-7

(1965) ; and BEIDELMAN

«Beer Drinking and Cattle Theft in Ukaguru

Intertribal

Relations in a Tangemyika Chiefdom»,

63 American Anthropologist,

534 (1961).

Further on crime data see TANNER

«Some Problems of East African Crime Statistics»,

Conference Paper, No. 43 (Kom;

: Makerere Institute of Social Research, 1966) ;

GENEYA

«Crime Statistics in East Africa» (Dar es Salaam, Faculty of Law ; mimeo

1968).

Finally see an article by P.N. Mucizi, entitled «Special unit helps cut

cattle thefts», The Standard, 11 February 1969, or The Nationalist, 10 February 1969,

in which the special Police Stock Theft Prevention Unit is discussed ; eand amother,

«Offensive on Stock Thefts», The Standard,

17 May 1969,

in which a border

region(s) (Mara) commissioner is reported as saying that Tanzania and Kenya were

planning «to wage a strong war against stock thieves on the border of the two

countries to restore good relations and harmony among the tribes living on the

borders.»

(37)

HoLmaN, The Elephant People (London

John Murray,

1967).

This book is also

valuable for the description it gives of a misguided social

efence programme

which in the end had left much of the criminal organization in act (middlemen and

receivers and their corrupt allies in government), while wreaking havoc on the

apless hunters. At p.

19, HorMaN's post-script sadly relates

«The most tragic

part of the whole affair is that, in their dedicated efforts to save a wild-life

=

species, the game men really only succeeded in virtually destroying the Liangulu,

an ethnic minority of very great interest and one on whom no anthropological

work has ever been carried out.»

(38)

See, supra, notes 2 and 3; see also Eric RosIns' article

«Red Reprive for Black

Rhino», The Standard, 18 November 1968, in which he discusses the «bush under-

ground» which operates (in Kenya in this instance) to get illegally taken rhino

horn down to the coast from the parks, and exported, in the form of powder, to the

Asian market.

(39)

See the following articles in which the battle between poachers and antfi-poachers

is discussed

«New Anti-Poaching Moves Urged», The Standard, 15 October 1968 ;

«Officials Caught as Poachers», The Standard, 24 June 1969 ; «Par

en Arrest 83

in Campaign Against Poachers», Sunday News, 24 August 1969 ; «Appalling Butchery

in Serengeti», The Standard, 7 October 1969 ; «Waterholes Poisoned by Poachers»,

The Standard, 11 November 1969 ; The same paper has had two editorials recently :

«Preservation, Poaching», 7 August 1969, and «Poaching», 8 October 1969. See also

«Poaching Causes Concern», The Nationalist, 11 October 1969.

(40)

lllegal Hunting in Tanganyika,

1

See also HoLMaN, supra, note 4, especially

chapter 6

«The Bush Underground», and chapter 11

«The Ivory Coast».

(41)

HoLMmaN, supra, note 4, p. 66.

(42)

See

«Three Fined for Woodcutting», The Nationalist, 16 April 1968.

(43)

T

orruption pl

am informed.

ays a large part in the illicit tmd.e of dealing in game trophies, so

This is particularly

e case in Kenya, but also fairly common,

I am told, in Tanzania.

Corrupt measures are used all along the line, in order

to get firearms licences, licences for shooting game, and papers for possessing

note

and exporting the trophies.

HouMan discusses these matters at lenght, see supra,

(44)

See

«More Illegal Tree Felling», The Standard, 12 Deceﬁbet 1968.

(45)

See

«Law to Curb Fishing by Explosives», The Standard, 30 May 1969 ; «Explosive

Issue for Fishermen», The Standard, 18 November 1969, where it is reported that

poachers are dynamiting fish off the mainland coast.

It is done just before dawn,

and the dazed fish are then gathered up and sold in the coastal markets before

legitimate fishermen return with their catch.

It is reported that the «police are

not doing amything about it».

(46)

See

«Poachers Roam Park for Honey», The Nationalist, 9 August 1969.

(47)

The figures vary, but the Tanzanian Minister for Home Affairs, Mr. S

aswanya,

as several times called for more recruits, see The Standard, 25 January 1968

(where he asked for 2000 more).

See also The Nationalist, 16 July, 17 July (edi-

torial) 1968.

he ratio at present appears to be about 1100 (population) to 1 (police).

The most recent statement indicated a plan to recruit 1300 in 1969.

The Sandard,

in the recruiting drive.

(48)

The country covers some 365,000 square miles, of which some 90,000 is set aside

25 October 1968.

for national parks or some Kind of reserve.

In fact, I believe that this number has not been approached

A complete description of it is not

called for, but it can be said that vast areas of it are inhospitable to man, and

extremely difficult to traverse in any manner.

People,

As Horman points out in The Elephant

even supremely fit and courageous «ace» hunters and expert bushmen can

succumb to the various dangers of the land, within or without the National Parks.

(49)

See, e.g. remarks by a resident magistrate concerning the Government's efforts

to attract tourists, «one of the most lucrative industry in the country», «Poacher

Imprisoned», The Nationalist, 22 February 1969 ; remarks by chairman of the board

of trustees, National Parks of Tanzamia, «Parks Vital for Posterit

y - Sapi»,

The

Standard, 6 June 1969

;_address to the National Assembly by the Minister for

griculture, Food and Co-operatives, «Crackdown on Poachers», The Standard,

4 July 1969.

(50)

Thus from a report from the A

rusha Game Division we see that «Figures

show

that for the quarter July to

September, the division secured 67 convictions for

poaching with fines totalling 5400 shillings and prison sentences totallin

11 months.

o rifles were co

iscated, in «Waterholes Poisoned by Poachers», The Standard,

11 November 19

; and in another case, a couple were fined 200 shillings for

eing in unlawful

possession of tusks worth 400 shillings,

«Couple Fined for

Having Tusks»,

The Standard, 5 August 1969.

It is true,

however, that imprison-

ment for longer terms has become more common of late,

see e.g. «Poacher Jailed

wo Years», The Standard, 19 May 1969.

In his latest report, Mr. Field, Chief

Park Warden of Serengeti notes that in on

e month, 495 wire snares were confis-

cated and fifty-two alleged poachers arrested,

He

is quoted as saying an

approach had been made to the judiciary to point out

the dangers of poaching

and the economic returns it offered.

«In order to be deterrent, sentences must be

sufficiently severe to ensure that poa

ching as an industry doesn’t pay», he stated,

and referred to a recent case in which a poacher was fined 300 shillings, and

given back his

«blood-stained vehicle».

Mr.

Field called

for

confiscation of

poachers’ vehicles, see «Serengeti Poaching ‘Alarming’», The Standard, 27 Novem-

ber 1969.

(81)

U.N. Secretariat, 25 I.R.C.P. 6 (1967).

(52)

Ibid.

(53)

See

«External Financing of Economic Development

International Flow of Long-

Term Capital and Official Donations, 1962-1966» (United Nations Publication, Sales

No. E.68.I11.D.10).

(54) Supra, n. 52, p. 6.

(55) Supra, n. 28.

(56) Supra, n. 52, p. 7.

(57)

Through the annual journal, International Review of Crime Policy, through the

sponsoring of Regional and World Conferences, through su

rt of projects and

institutes in many parts of the world and by the recent establishment of the United

Nations Social Defence Research Institute in Rome.

(58)

See e.g. «Socialist Penology» in which I was then advocating a somewhat different

approach. There I stated that «In my view, the approach to be adopted must be

radical and evolutionary, which is one way of saying revolutionary in the Tanzania

context.

It must be based on planned change over year(s).

The entire penal

system must be evaluated from top to the bottom, and a schedule drawn up for

penal development fully integrated with the National Development Plan.

In order

to do this, a permanent Prison Advisory Commission must be established with

membership from within the Prison Department,

the Judiciary,

the Police,

the

various Faculties of the University, and a research staff drawn from any available

sources ; those young criminologists we shall be developing would provide a base».

(59)

IN March 1969 student demonstrators at the Faculty of Law, Dar es Salaam, forced

e suspension of a proposed new curriculum.

It became clear, however, that their

main target was the expatriate, and in particular American, representation on the

Faculty staff.

he lecturer in Criminology (the present writer) was, along with other

Americans, attacked as an «imperialist spy lecturer».

The basis for this charge was

subvert members o

simply that the lecturer had the apportunity to meet and therefore, presumably,

the police and prisons service.

It need hardly be said that

no evidence was put forward to substantiate this wild accusation, nor indeed

does any evidence exist.

(60)

See my discussion of corporal punishment in Developments in Criminology, p. 30,

of and notes.

ark

on a

The preliminary findings if

r. Ganja Geneya who is e

study of the Minimum Sentences Act,

1963,

indicates that offenders themselves

prefer «strokes» to prison, and that it does not appear to have a detterent effect.

About the only two conceivable arguments in the face of research which indicates

a lack of deterrence (special, and perhaps general) are that :

a) it is cheap if used as an alternative to prison ;

b) it might be a way of psycologically conditioning certain types of offenders,

perhaps the very young, and if applied under different conditions than at present.

But of course: a) strokes are normally given in conjunction with prison, not as

an alternative ; b) we exclude the very young, and do not make any attempt to

differentiate between those who might and those who obviously will not, benefit.

In this respect we lag behind even South Africa as Tanner has pointed out in

his interesting discussion in Crime and Punishment in East Africa 21 «Tromsi-

tion» 35 (Kempala, 1965).

(61) See the statements by Second Vice-President Kawawa and Ministere for Home

Affairs Maswanya The Standard and The Nationalist, and compare the reported

comments of members of the National Assembly in the same sources 22-24 October

9. Also compare Mr. Kawawa's remarks at the Conference on Penal Problems

2 E.AL]J. 6-7, where he indicated he favoured «very severe seentences» and seemed

to favour the use of strokes it they acted as a detterent.

Criminal

ro or life his-

tory, which would be obtained mainly by interview. See Winter The Life History

as A Research Tool (Mimeo, E.A.L.S.R. Paper, 1953).

For some interesting «life

histories» see Clifford «Profiles in Crime»,

Social Welfare Research

onograph No. 3

(Lusaka: Government Printer, 1964).

Both Winter and Clifford warn of the dangers

of subjective reporting and also of the danger of getting a number of individual

stories which are not meaningful because there has been no attempt to place them

in context nor to try to find a unifying theme.

Finally, for the classic illustration

of this kind of research see Shaw,

'he Jack Roller (Chicago: University of Chicago

Press, 1966) subtitled: A Delinquen

t Boy's Own Story.

recent book by Tony

Parker, with Robert Allerton, The Courage of his Conviction

s is also an excellent

example of this technique which Parker has made use of in studying a variety of

deviant behaviour.

(62) See «Developments in Criminology» footnotes 5-8 concerning political pressures,

sanctions and robbery with violence in particular.

-_— 06 —

(63) The institute has several projects underway in Africa at the present time, including

one in Uganda.

There were also preliminary negotiations to carry out several pro-

jects in Tanzania,

(64)

Rapzinowicz, The Need for Criminology.

(65) Ray, «The Need for a National Agency to Promote Sound Policies for the Prevention

[e]

Crime and the Treatment of Offenders, with Particular Reference

to

Indiay,

23

LR.C.Pisi3]

(1965).

And see Stenning,

«Relationship of

ocial Research to

Planning, Organization, and evaluation of National Social Welfare and Community

Development Programmes».

(Kampala: M.I.S.R. raper, 1963.)

(66)

Ray, Ibid. 33.

(67) See e.g. Kato, «Methodology of Law Reform» in Sawyerr (ed.) East African Law

and Social Change (Naibori:

East African Publishing House

1968) ;

RUGIMBANA,

«Various Aspects of the Penal System in Tanzania», 2 E.A.L.J.

18 (1966),

Read,

«Some Legal Problems in East Africa», 2 E.A.L.J. 39 (1966).

(68) See for instance the remarks to that effect by the then Prisons Commissioner,

Mr,

RUGINBANA,

«Various

Aspects of the Imprisonment System

in East

African,

2 EAL]J. 18

1966).

(69)

See the separate reports of

the Prisons Service,

Police Force,

Judiciary and

Social Welfare Division.

(70)

See for example Tanzania, Report of the Police (1964).

(71) MarTiv and BrADLEY, «Design of a Study of the Cost of Crime», 4 B.]., Crim. 591 (1964).

(72)

Ibid. 591.

(73) National Commission on Law Observance and Enforcement (the Wickersham Com-

mission).

Vol.

The cost of crime (U.S. Government Printing Office, Washington,

(74) See a theoretical discussion by MaRTIN, «The Cost of Crime: Some Research Pro-

blems», 23 LR.C.P, 57 (1965), and another by WiLkins, «Crime Prevention and

Costs in National Planning: a Discussion of Concepts and Issues», 25 LR.C.P. 21

(1967).

(75) Sicock, «The Increase in Crimes of Thefty, 1938-47,

(Liverpool,

1949).

And see

MARTIN and WiLson «Problems in Cost of Crime An o'

sis: some aspects of police

expenditure in England and Walesy,

25 1L.R.C.P. 47 (1967).

See also Lynch

«An

Estimate of the Extent of Larceny in Industry and the Motivations of this Phenome-

non», (an unpublished University of London M.A. thesis.

(76) See MaRrTIN, supra n. 74, WiLkIns, ibid.

(77) See discussion of the

College 1968-69 in «De

research carried out by the Criminology seminar,

University

Criminological Researc

velopments in Criminology, «See also CLIFFORD,

«Problems in

h in Africa south of the Sahara», 23 LR.C.P. 11 (1965).

(78) With regard to research generally see MoRRis,

Research» (Mimeo, University college,

«Notes on the Strategy of Social

the discussion by

ADGE, T

Dar es Salaam, (1967).

On Interviews see

A kind of research needed i

n East Africa is the...

he Tools of Social Science (London: Longmans,

1967).

(79) I used questionnaires with mag

one anonymously, but there

was considerable police re:

istrates, police and probation officers. They were

absolutely clear to them the

purpose of the q

esistance until it was made

some useful information (the

research reports

uestionnaire technique has given us

crime, police an

cers’ attitudes wh:

on unreported crime, self-reported

in Criminology»

<:lS.ec. 2, .?f?e;?eiﬁ

ich are discussed in «Develo

ents

is using the questionnaire to g

all done by questionnaire).

At present Mr.

eneya

ain some idea of attitudes held

especially by prisoners

and prison warders, concerning corporal punishment.

(80) It is in dedling witch research methods su

ch as questionnaires, that the law

student is especially

at a handicap becaus

science research meth

ods.

It is, of course,

e he has not had training in social

we did this year,

in order to balance ou

t their weak

possible to use students in tandem, as

products of a single discipline education.

Th

ere has been an

points due to being the

run a research methods seminar for Law Facu

attempt this year to

can be repeated at student level,

Ity Staff,

and it may be that this

(81) See my comments in Socialist Penology and Develo

pments in Criminology on the use

of the police and other toilers in the

ield to o

btain research

ata.

This is not

an idea original with me,

see Whitaker, The Police, also CLIFFORD,

supra n.

(82) Thus I know of one case in which a confidence men wh

o was known by police prose-

cutor and magistrates in

es S

aam to be a r

ecidivist (he had worked his

tricks on some of them in relation to qutomobile r

epair work) was given a far

hter sentence than he deserved because the r

"

cord concerning his previous

of

ences was not forthcoming from the Police Records

Division.

(83) See CLIFFORD, supra n, 77.

i

(84) See on the problem generally an editorial «Destitutes» The Nationalist, 23 july, 1969,

and a subsequent article «Stop Flow of Destitutes Plea» The Nationalist 19th August,

1969, reporting an appeal by the Commissionner for Social Welfare for Regional

authorities to keep persons from travelling to Dar es Salaam (where they woul

over

burden the City’'s facilities for rehabilitation).

Finally, a report in The Standard

24th September, 1969, indicating that the Ministry of Health and Social Welfare is to

build rehabilitation centres for such persons in the Region.

(85)

See CarNEY, Social Defence Perspectives in Development Planning with Special Refe-

rence to Africa 25 I.R.C.P. 42 (1967).

See also WILKINS, supra n. 74 at 21, 26.

(86)

WILkINS, supra n. 74, at 27.

(87)

See generally Rabzinowicz, supra n. 64.

(88)

See e.g. Crirrorp, Crime and Development Planning 25 1.R.C.P. (1967), although he

seems to favour the permanent agency view.

(89)

Ray, supra n. 65 p. 35.

(90)

Ibid.

(91)

Ibid.

(92)

GRons, Some Remarks on Priorities of Sociological Research in East Africa (Mimeo:

Paper presented to a Sociology Workshop, Markerere University, August, 1968).

(93)

It would seem that financing through the United Nations Social Defence Research

Institute would be the most appropriate, particularly if they con obtain staff and

financing from non-Western developed countries.

(94)

On research in Tanzania, see Developments in Criminology, p. 1-39. I would like to

thank in particular Mr.

.E.]. Nwancas! for his co-operation and encouragement of

research in connection with Probation and the Approved School at Malindi, Tanzania.

(95)

See BOEHRINGER, Developments in Criminology for the development of our seminar

and research programme ond the participation in the seminar o

igh government

officials, including the Chief Justice and the Director of C.I.D.

(36)

We hope to publish shortly a number of studies which were carried out by the

Crimin

-

?logy seminar. The studies are described in Developments in Criminology,

p.

(97)

The Ministry was concerned with a large increase in homicide and suicide in «

particular rural area.

(98)

See generally Rabzinowicz, supra

64.

S

also GRYGIER Research as a Basis for

Planning in the Social Defence Field 25 1.R.C.P. 61 (1967).

(99)

See BOEHRINGER, «On Teaching Criminology in the Faculty of Law, Dar es Salaam»,

submitted to the Journal of Legal Education (1969).

(100) Sempman, A source book of the Criminal Law in Africa (London: SWEET and MAXWELL,

ere are several useful American Texts such as that by Paulsen and

Kadish, or by Goldstein et al.

(101) Developments in Criminology.

(102) Ibid. See also BOEHRINGER, A Pre-liminary List of Possible Research

Criminology and Penology (Mimeo, Faculty of Law, Dar es Salaam, 1

.Topics in

(103) See Developments in Criminology. See also TANNER, Some Problems of East Afri-

can Crime Statistics (Kampala:” M.I.S.R. 1966); GENEYA, East

rican Crime Statis-

tics (Mimeo, Faculty of Law, Dar es Salaam 1969) ; LALANI,

A Survey ot Self-

Reported Crime (Typescript, Faculty of Law, Dar es Salaam,

1969) ; Didi AcarD,

urvey of Self-Reported Crime (

pescript, Faculty of Law, Dar es Salaam, 1969) ;

Mxinol, A Survey of Unreported

b

rime (Typescript, Faculty of Law, Dar es Salaam,

1969).

(104) See Developments in Criminology.

(105) Costa, «Penal Policy and Under-devel

opment in French Africa» in Milner (ed. Afri-

can Penal Systems (Routledge and K

egan Paul, 1969).

(106) BOEHRINGER, Alternatives.

On sanctions generall

see also MILNER, «The Sanctions

of Cu.stomary Criminal Law: A study in Soci Control», 1 Nigerian Law, J. 173

(107) Probation, and Social Welfare have been grouped together in one division under

a Commissioner for Socia

Ministries, within the last

1 Welfare, within a series of different aggregate group

two years it has ch

an

ment and Rural Development,” to Ministry of

R

ed from Ministry of Local govern-

egional Administration eand Rural

Development to Ministry of Community Develo

present Ministry of Health an Social Welfare.

pment and National Culture, to the

In my view this last grouping is

not altogether, a happy one, but the proper org

anization solution is a difficult one.

o a considerable extent Probation officers must be Welfare workers and this

officers,

certainly puts them between Health and Justice.

See on the work of Probation

CLiFPORD, A Primer of Social Casework in Africa (Nairobi: Oxford Uni-

versity Press, 1966).

=

(108)

Ray, supra n, 65 p. 35.

(109)

CLIFFORD, supra n. 88, p. 12

(110)

Ibid., p. 11-12.

(111)

See GENEYA, supra n. 103

TannER ibid. ; BOEHRINGER, ibid.

(112)

BOEHRINGER, Developments in Criminology.

(113)

See for instance a report in The Standard 31st August, 1969. Zanzibar to Rehabili-

tate Criminals in which the Commissioner of Police said that crime there

ad

been greatly reduced. This was a repetition of statements made the previous

year.

(114)

CLINARD, Poverty, Deviance and Development.

(115)

CLIFFORD, supra n. 88 p. 10, also 13.

(116)

CARNEY, supra n. 85, p. 29 ; WiLkINs, supra n. 55 p. 25.

(117)

United Nations,

International Action in the Field of Social Defence (1966-1970)

(E/CN.S/C.2/R.2).

(118)

Ibid.

(119)

CARNEY, supra n. 85, p. 39.

(120)

CLIFFORD, supra n. 88, p. 10.

(121)

Ibid.

(122)

BOEHRINGER, Socialilst Penology, Developments in Criminology, Alternatives.

(123)

RuscHE and KIRCHHEIMER, Punishment and Social Structure (New York: Colombia

University Press 1939).

See also any of standard texts, American or British, on

Criminology and Penology.

(124)

BOEHRINGER, supra n. 122.

(125)

Self reliance had indeed become the theme of the Prison Service, following the

theme of self reliance which has been propounded for years by President Nyerere.

See for example

ucation for Self Reliance (Dar es Salaam, 1967).

The

inister

for Home Affairs Mr, MAswANYA, is reported to have «called upon all prisons in

Tanzania to be fully self-reliant by 1968 and emphasized that not a cent of the

taxpayer's money should be used for feeding, clo

ing or maintaining the prisoners

thenceforth».

The Nationalist 30th’ December, 1967. Although this goal has not

yet been achieved, there has been considerable progress in that direction,

(126)

See CoopER and King, «Social and Economic Problems of Prisonners, Work»

in Halmos (ed.) Soc. Rev. Mono. No 9 (1965).

See Developments in Criminology,

p. 54, {f where I discuss Prison Labour, And see BowbpeN, «The Penal Involving

Employment for Convicted Offenders», 6 E.A.]. 31 (March, 1969) ; BOEHRINGER, «Preli-

minary Thoughts».

(127)

CLIFFORD, supra n. 88, p. 13.

(128)

SHaH, Social Defence in Relation to National Economic and Social Development

Planning, 25 LR.C.P. 106 (1967).

An

see my comments on involving the public

in social defence generally, in Developments in Criminology.

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Criminality

in the rapidly industrialised urban milieu :

Examination

of social defence measures in North America

par Denis SZABO

Director, International Centre for Comparative Criminology,

University of Montreal (Canada)

I. — PROBLEMS

The continuing existence of the criminal phenomenon is a great challenge

to the human mind.

For despite the fact that man, after nearly two centuries

of scientific and technical progress, has at last triumphed over his natural envi-

ronment, so far he has not eliminated crime. There is nothing more permanent

“good year, bad year, a cer-

in the social organization than the prison budget

tain number of individuals are locked up behind bars,” said Quetelet as far back

as the middle of the XIXth Century—a century, however, that witnessed the

most spectacular progress in all fields.

Since then, because of the evolution

of western moral philosophy, whether inspired by problems of philanthropy,

mental and social hygiene, scientific research or, as now, public order, minds

have stood up to this challenge—albeit without much evidence of success.

Most reform movements were inspired by an optimistic view of man and

society, believing in their infinite perfectibility ; these were heirs to the philo-

sophy of Jean-Jacques Rousseau, whose counterpart in the field of biology

was Darwin and in the field of economics, Karl Marx.

The social sciences

were conceived in this context, and in order to specify the social forces shaping

man's destiny according to a determinist hypothesis, they proposed to furnish

the tools for the establishment of a social order that would eliminate the

scandalous material and moral ills of society. Criminology, too, was born

in this same context; Lombroso and Ferri, the Darwinian biologist and the

Marxist sociologist, oriented our discipline toward the conquest of patholo-

gical and anti-social forces.

It is true that Durkheim took a more moderate

position, crime being for him a normal phenomenon linked with the functioning

of society, and Tarde had an even more pessimistic view, considering his

adherence to the idea of free will and his Christian concept of human nature,

always exposed to the forces of evil.

Nevertheless, the predominant thought,

especially of those who were oriented towards action, was inspired by this

first tradition.

It is from such a context that we must begin the study of social defence

measures. Though some time later, these developed on a parallel with medico-

psychological measures and were directed towards diagnosis and treatment

of the delinquent personality.

Gradually expanded to include the family,

particularly under the influence of Freud and psychoanalysis

in general,

diagnostic and therapeutic practice was centred on the individual, usually in

an institutional context ; insistence on the hospital analogy is one of the cons-

tants of the history of contemporary clinical criminology.

Sociological tradition emanates from seemingly diametrically opposed

points of view ; it is the society which “forms” the individual, yet it is the

faults in the social organization which creates delinquency—an extreme form

of behaviour which deviates from the prevailing norms of a given culture.

Tarde has already told us that a person becomes a criminal not only because

he breaks the law, but also because of the way in which society reacts to

what he has done.

It is for this reason that in examining the society, its

structure and its organization, the social science specialist is forced to trace

the source of the deviant behaviour and to outline its causes, as well as its

remedies.

The role of the group, of the community, in *“‘deviance” was the sphere

of activity chosen by sociologists

if one wants to change the behaviour of the

individual, one must act upon the behaviour of the group.

How can we gain

control over groups, categories or social classes ?

How can we put pressure

on the political, economic, spiritual and moral powers whose influence is

decisive in social reaction against crime ?

What theoretical justification, what

plan of action and what techniques for specific intervention can be used so

The

that social changes will lessen the delinquent potential of a society ?

present study will be devoted to the examination of these questions; after a

rapid outline of the etiological theory of delinquent behaviour, we will sum-

marize the history of collective intervention within the social order.

After

having examined the main types of contemporary social action, we will render

an account of present results and outline future perspectives.

Several preliminary remarks.

Our subject is one of the most recent

chapters in the social sciences, the literature on psycho-medical intervention,

really medico-psycho-social in the case of the individual and his family, is

relatively rich.

The conclusions we gather from it, however, are marked by

reservations considering the enormous complexity of the situations and cases

The

studied, and the insufficiency of controls and experimental verification.

controversies raised by Szasz' book, “Law, Liberty and Psychiatry”, are signifi-

cant in this respect. What shall we say of the problems with wich we are concer-

ned here, whose theorical and methodological complexity is enough to discou-

rage many a willing scholar ? The difficulties are threefold : theoretical, first

of all, because one must start from a concept of society as a whole, its

dynamics and its methods of functioning ; practical next, because one must

use the tried techniques of intervention; and finally political, because any

action of this kind presupposes a choice in the order of socio-economic prio-

S DY

rities.

It is not surprising then, that the accounts rendered to this day in the

fleld of social prevention (by the United Nations, by the Council of Europe,

for example), clearly show great gaps, and verge on being a statement of

almost complete inadequacy.

The important fact to remember however, is

not this very meagre record ; it is the fact that public opinion, the mass cons-

cience in the Western countries, has recognized the problem in both the

practical sense and the political or moral sense.

The elimination of want, of

the economic causes of extreme inequalities, has given rise to a social policy

which came about by political revolution in Eastern Europe, by the founding

of diverse forms of welfare states, through democratic procedure, in Western

Europe and by selective intervention, directed toward the stimulation of indivi-

dual and collective energies, in North America.

It is now up to theoretical

sociology to develop the conceptual means to proceed with the analysis of

social structures and situations ; it will thus live up to its high tradition of

seeking to better the human social condition.

Il. — CAUSES OF DELINQUENCY : SOCIO-CULTURAL ETIOLOGY

From the sociological point of view, the causes for delinquency must be

sought in those elements of the social structure and organization which integrate

the individual in the various socio-cultural systems making up society as a

whole.

We shall quickly review these elements, making a note of the conclu-

sions or hypotheses arrived at by various researchers.

These elements are

the economic system, the social system ; the classes, the system of education,

peer groups, the family, the culture ; the mass culture, and the problems of

leisure in particular.

a) The economic system

The economic system in the western democracies is based on the stimula-

tion of effort for material rewards.

Success, wherein lies the social status of

the individual, is synonymous with financial gain; the mark of failure is

material

low social

All

poverty, synonymous with

standing.

psycho-social

energies of the individual are therefore directed by the family, the school,

the mass media, towards greater and greater efforts to achieve material

success ; a consumer society is born of the continuous progress of its economic

system, the bounds of which are limitless.

Needs are by definition insatiable ;

there is always something to be attained or wished for.

However, in this type

of economy and society, there are vast segments of the population which,

for various reasons, cannot attain these proposed riches.

Under-developed

areas have been created within the total socio-economic system which, although

amply imbued with the desire to have things and the need for success, are

incapable of realizing these dreams or ambitions.

These highly developed

economies harbour areas of poverty, of want, the existence of which is all the

L e

nore distressing by comparison with the flamboyant luxury in the immediate

neighbourhood that bespeaks economic and social success.

This contrast,

this meeting of two worlds within the urban areas of our metropolises, consti-

tutes an explosive social situation.

The ’hot summers' sough of our borders

are a good example of this.

For a long time this situation was underestimated or masked by the

exclusively individual orientation of our social or medico-psychological services.

We thought that the poor had vices inherent in their biophysical nature, which

led them to laziness, drunkenness and delinquency.

An examination of the

categories of psycho-social disorders within the urban area showed that since

the 30’'s, especially in Chicago, certain social milieus, well located in various

sections of the city, were contributing far more than their share of criminality.

For too long, the reaction of the community was like that of Lombroso and

his followers

like born criminals, the poor are the enemies of society ; they

must be eliminated from the social circle by the exigency of the law.

A

kind of established social eugenics has prevailed for a long time in most of

our countries in this respect.

We understand today, however, that not only is.poverty in itself not

conducive to delinquency ; on the contrary, the relative lethargy and indiffe-

rence which characterizes the situation of the poor, acts as a safeguard

against aggressive behaviour.

The proof lies in the law rate of criminality

in the third world, and in the poor rural areas in our own country.

It is the

tremendous contrasts that provoke the explosion : the poor side by side with

the rich, sharing their tastes, their ambitions, but not having the means to

satisfy them.

About a third of the population in North America as well as in Europe

lives below the dividing line between opulence and poverty ; the poor, cons-

tantly depleted of their most gifted and dynamic elements, never succeed on

their own in spanning the gulf which separates them from what Harrington

called “‘the other America”.

The different governments’ answer to this problem

was an enlightened social policy.

In Europe this was a policy of full employ-

ment and guaranteed income—called social security.

In North America, it

was the fight against poverty, legislation on professional training and social

aid—called the great society.

This was gradually taking form in Europe

ever since the 30’s and particularly just after the second World War, and

in the United States form the time the democratic party came to power after

President Eisenhower.

Who are the people living in our slums ?

The majority are foreigners

and recent immigrants, often coloured, from rural areas.

Western Europe

is becoming Americanized in this way as well ; Great Britain and the Common

Market countries are attracting foreign manpower, including many coloured

people, and the situation presents many aspects of the black problem on our

continent.

John Seeley (1956) establishes four categories of slum dwellers

the permanent opportunists who use these areas as a kind of refuge ; here we

find a number of sub-categories : the fugitives who have run afoul of the law

=50 s

or are in trouble with credit compagnies, and who are unable to keep up with

their peers.

The “‘untracables”, who are a floating population who do not

even appear in the census, and who lead an existence outside the pale of

“official” society. Those who Seeley calls the “models”are missionaries of

a sort who, by their example, want to spread the cultural or religious values,

Sects like the social

of which they believe these people have ben deprived.

aid organizations are the chief purveyors of “models”.

Finally, there is the

“sporting crowd”, people of the demi-monde who live here to save money on

rent in order to have more to spend on gambling, drinking or dissolute living.

The chronically poor are divided into three sub-groups

the indolent,

the adjusted and the social outcasts.

The indolent are characterized by a

general apathy and almost total immobilization, due to a whole series of

factors, often inherited generations back, such as malnutrition, sickness, low

level of education, etc.

These people are resigned, incapable of individual

action or collective action to better their situation.

In certain circumstances,

however, they prove fertile ground for brutal, violent outbursts for no apparent

reason.

The adjusted are people, already semi-outcasts, who adapt to this

situation of underdevelopment because it suits them.

The low rent, the allo-

wance from social security or social welfare is part of their organized and

accepted existence.

The social outcasts are made up of drug addicts, alco-

holics, prostitutes and pimps—not the demi-monde, but the anti-monde—

composed of truly anti-social elements.

The temporarily poor are composed of respectable poor and those who

are trapped. The first are persons who, even if they have to stay in the slums

Their models of

for the rest of their lives, never accept their situation.

identification are outside the slum area.

Those who have fallen into a trap

are people whose homes were in an area which became a slum and who were

not able to move elsewhere.

The temporary opportunists are numerous.

They

fall into the following sub-categories

new comers, climbers and entrepreneurs.

The new comers are recent immigrants who have no assistance from their

family or their ethnic group and must manage on their own and with very

modest means.

They are waiting for the first opportunity to move elsewhere

in the urban area.

The climbers are similar types, except that they stay

longer in order to save the money necessary to get out more easily later on.

The entrepreneurs are more ambitious than the former

even if they have

saved a great deal of money, they still stay in the slum area to invest elsewhere

and to better advantage.

Clinard (1966) gives a detailed analysis of slums in the contemporary

world, a socio-economic and psycho-cultural typology.

It is enough for us

to note here the relationship between this socio-economic zone within the urban

area and the economic system which charasterizes our civilization.

Very

few studies have been done in different civilizations on a comparative basis.

:

.

However, we can risk the following speculations

in the third world, the poor

sections in the urban areas developed in about the same manner as they did

here, a relative poverty, moreover, since the revenue of people living here

But

is higher than that of people living in a village economy, or in the bush.

the element of contrast which we have identified as the strategic factor from

the criminal point of view—the generators of conflict—are there.

Also, delin-

quency is evident in these countries on about the same footing as in our

country. 'Where the socialist countries are concerned, particularly the countries

of Eastern Europe that are largely industrialized, one can say that there, too,

urbanization has caused a social imbalance and problems of adjustment very

similar to those known in the Western countries.

(Lekschas (1965), particu-

larly Walszak).

However, these countries have not developed a consumer

economy such as we described above, and the characteristics of which are

well described in the works of Riesman, Gailbraith and Aron.

Goods being

more scarce, investments being geared for long-term economic development,

the social framework was influenced by the very nature of the political system

in a socialist democracy. All these tactors, and others as well, which we have

no time to enlarge on here, contribute to a situation which gives the urban

milieus in these countries a reduced criminal potential as compared with the

situation which prevails in the western world and, in particular, North America.

b) Social classes

Social classes contribute differently to delinquency.

We have seen that

the poor, in adverse, anomic milieus in our large cities, constitute a high

criminal potential.

In France, in the XIXth century, one could identify the

working class as the dangerous class.

A short examination of the statistics

on arrest or on prisoners shows that persons of working-class origin are over-

represented compared with other social classes.

Several interesting research

projects were directed toward the study of this question in the United States

by Miller, Kvaraceus, Cohen, Cloward and Ohlin.

A detailed analysis of their

ideas can be found in any criminological manual.

(Cavan, 1963).

Let us

merely say here that for Miller, the working classes are characterized by a

culture which to some extent predestines them to delinquency.

In other words,

the offence is determined by other classes, the upper classes, in relation to

what they consider is the “normal” behaviour proper to the working class.

Thus, for example, to have difficulties with the surroundings, to be uncouth,

excitable, wicked, to have a feeling of independence and fatalism, all these

seem to characterize the working class milieu as well as the delinquent milieu.

For Cohen, it is the frustration of the working class youth, faced with the

impossibility or the difficulty of achieving the well-being of the opulent society,

which is one of the major sources of their latent and overt delinquency.

Upon closer examination of the situation of the under-privileged working class

youth in the large cities, one is aware that the influences of the educational

system, the recreation groups, the family, for example, all come into play in

a criminogenic sense.

Does this mean that there is no delinquency, or very ‘lih‘le, in other classes

of society ?

Certainly not.

Without referring here to the problem of white-

collar criminals, who place the issue on a still broader scalé, we may recall

the increase in time of the psycho-social moratorium (Erickson) principally for

adolescents of the middle class.

The results of this phenomenon, made neces-

sary by society’s need for better educated, better qualified manpower, is the

relaxing of discipline in the working milieu of millions of adolescents, submitted

to the contradictory demands of society, without sufficient moral preparation.

A new culture is born, the adolescent culture, which has been the subject of

intensive study for several years now by specialists in the social sciences.

Alie-

nated vandalism, uncalled-for violence, are all traits as commonly associated

There is a connection not

with deviant behaviour as delinquent behaviour.

only between delinquency and the working class culture ; it is apparent between

delinquency and the adolescent culture, peculiar to the middle class.

What of the upper classes ?

Sorokin, in a striking historical retrospec-

tive, described criminal personalities among the royal families.

Qur history

books, our playwrites (what specialist in criminal psychology ever surpassed

Shakespeare ?), our novelist (Dostoievsky was perhaps the most illustrious cri-

minologist of the XIXth century), are there to convince us that criminality

cannot be associated, except in semblance, with any particular social class.

Nevertheless, the reaction of society against crime, as expressed in the crimi-

nal code, and the orientation of our police activities and of our courts, is

particularly directed against the delinquency proper to the working class.

For this very reason, the preventive measures conceived and tried out were

essentially directed toward the problems of the lower classes.

We may conclu-

de, with Mc Iver (1967), that all frustrations which stand in the way of the

realization of normal ambitions for success, security and well being, can be

criminogenic, no matter to what class one belongs.

Cloward and Ohlin (1960), in a book which might well have had the

greatest influence in our field of interest since the works of Shaw and Mc Kay

in Chicago in the 30's, synthesized the link between socio-economic orga-

nization, belonging to a social class and adolescence.

They show how

differents types of sub-cultures are created in the ethnic ghettos of the urban

areas, in which the illegitimate possibilities for success are very much greater

than the legitimate ones.

Social pressure is such that whole categories of young

people cannot but seek a way out through criminality, violence, falling back

on the use of drugs, etc.

Cloward and Ohlin, whose work should be read

by all who are concerned with the problem of social prevention, propose a

solution which agrees on all points with the traditions of sociological thought,

from Marx to Veblen, from Durkheim to Merton, from Weber to Parsons

it is only by effecting changes of a structural nature and within the social

organization that a beneficial influence can be anticipated with regard to

individual and collective behaviour.

The reorientation of this collective beha-

viour must be achieved through collective structures, and not the reverse.

The

reverse has been practised for a century without showing much result : the

best techniques of institutional re-education of delinquent persons is bound

to fail if the milieu which produced this delinquency does not undergo marked

changes.

ARSI i

c) Educational System

The school is the social institution which has the strongest and most lasting

impact on the child and the adolescent.

Compulsory education is gradually

being extended to 16, 17 and 18 years, and the time is not far off when it

It must be said that the

will include education beyond the high school level.

school, as a social institution, has not evolved at the same pace as the requi-

rements it was supposed to satisfy. The proof is in the educational crisis which

broke out in the United States five years ago (see J. B. Conant’s book) and

which is rampant today in the European countries.

Conceived for a small

elite, coming from a homogeneous socio-cultural and economic milieu, the

high school became totally inadequate for the needs of a technologically ad-

vanced society. This lack of adaptation to need exists for all categories of

children, but it is particularly unfortunate for those who come from underpri-

vileged neighbourhoods.

We have shown that children whose family, social

and ethnic origin was different from that of the majority, and furthermore

came from a heavily disadvantaged socio-economic background, found in

school only an environment of frustration and constant failure.

The reaction

of these youngsters was trancy, violence and the deep conviction that they

had nothing to expect from a society which offers them such inadequate

The

means of access to knowledge, and through knowledge, the world.

segregation in the schools, so characteristic of the decentralized educational

system in the United States, sanctioned this feeling of exclusion, of rejection,

which was proved by millions of adolescents from the ethnic ghettos of the

large cities.

Instead of being the major institutions of civilization, as they

were for a long time in the United States, the schools have played a major

criminogenic role, comparable with that of the slums or the economic system.

d) Peers

The relaxing of family control, the proximity of friends in large, over-

populated cities, the similarity of problems or failures, rapidly creates a

solidarity which manifests itself in bands or gangs of adolescents.

It is most

natural that these groups play a powerful social role.

Among the reasons

for creating such groups are the need of the young person to prove his worth,

to belong to a milieu which recognizes him and to be with people who share

the same ideals, experiences and interests.

This milieu offers him moral and

material support vis-a-vis the adult world and the outside world in general,

which he perceives as being hostile.

This gang will guarantee him status in

the neighbourhood, giving him a feeling of power, authority and prestige,

while at the same time affording him protection against real or imagined

threats.

It is the incarnation of the collective conscience, the source of morality

par excellence.

In fact, feelings of justice and equality originates here

the

gang is the criterion upon which behaviour will be patterned.

It is also the

medium through which innate tendencies are sublimated and constitutes the

framework for symbolic, ritualistic activity corresponding to the deep-rooted

needs of the adolescent. (Cavan, 1963, p. 204).

We have established the typology of the gangs according to the sort

of activity or personality which predominates in each of them.

One thing is

certain : the integration of gangs in the delinquent or simply deviant sub-cultures

strengthens a resistance to the conventional social forces and creates for all

practical purposes, an impregnable milieu.

The word “disorganization” or

“jungle” by which we designated these milieus obscured the often very well

organized, strongly structured character of the sub-cultures which were evol-

ving, sometimes in the form of a true contra-culture, whose values were esta-

blished in total opposition to those of the “norma

'77

conformist society. Because

of this, the criminogenic role of peers has been gravely underestimated, to say

nothing of their possible role in the process of resocialization.

e) The Family

We shall be extremely brief, because there is a great deal of literature on

the subject.

Let us simply say that the family plays an exceedingly important

role, not only as a possible source of delinquency, but as the first environment

to inflluence the development of the human being.

Everything that takes place

here has a considerable significance, from the handling of the infant, the

mother's first smile, the relationship with the parents and between the parents,

to the disciplinary methods used.

For the sociologist, the important thing is

are there families less qualified than others to fulfil this socializing role that

is so necessary, and if so, where are they to be found within the social

structure and within- the urban area.

Studies show that it is precisely among

the families living in the slums that these functions are not assured, because

of the almost invariable absence of the fathers; family instability, which is

far from being limited to the poorer classes of society, has more serious results

in the slums, however, because the protective elements which society offers

in such cases, are more available to the middle classes than to the poverty-

striken.

The latter are more directly and more harshly exposed to the conse-

quences of a serious lack of family stability.

In this respect, the problem

becomes a social one.

f) The Culture

Among opulent societies, there is a tendency towards a uniformity of

cultural traits due to the increasing and universal influence of the mass media

of communication, and the freedom of choice in material goods and morals

The

that has considerably increased with the acquisition of more leisure.

role of the culture as a cause of delinquent behaviour has a tendency to

become intensified as the under-privileged social segments are being alienated

in contemporary mass society (Szabo, 1965).

Studies made on the misdemeanours freely reported by the young people

who were interrogated, seems to indicate that the criminal potential does not

differ very much from one social class to another.

Their expression differs

We have

considerably, while the social reaction they elicit varies even more.

only to imagine the goings on at some middle class parties and the same

behaviour in a public place by under-privileged young people

the latter

might very well be accused of immoral behaviour.

We may then suppose

that with the equalizing of our standard of living, the orientation toward cultu-

ral values, impressed upon the individual during the course of socialization,

will play a more and more important role in the explanation of delinquency.

At the present time, however, the social structure includes under-privi-

leged, poverty-striken districts in the large cities of the North American continent,

and these structural disparities have created sub-cultures, in fact contra-cultures,

in the ethnic ghettos of the metropolitan areas.

These cultures legitimize

anti-social behaviour and neutralize most of the resocialization work accomplis-

hed by the prevention services or the treatment of delinquents.

What conclusions can be drawn from this rapid outline of the causes of

delinquency from the point of view of the sociologist ?

The first conclusion

is that sufficient empiric evidence exists to give a concrete, operational meaning

to the socio-cultural “factor”, for a long time reduced to a mythical role an

elusive metaphysical factor in the eyes of practitioners or responsible persons

dealing with the problems of criminal prevention.

'We know precisely enough

what factors exercise a criminogenic role within the family, econcmic, social,

educational and cultural systems.

The second conclusion concerns the practical

inferences to be made from these findings.

We have often said that if we

applied only one tenth of what we know in terms of prevention, we would consi-

derably further the cause of social progress.

This is perfectly true : one of the

oldest experiments in social prevention measures, the “Chicago Area Project”,

has been testing measures and proposing solutions based on its experiments

since the beginning of the 40’s.

It took until the beginning of the 60's, and

President Kennedy, before any action, inspired by these experiments, was begun.

However, this is something the historian or the sociologist has experienced.

It takes the combination of a multitude of factors, from the dynamics of

economic development, going through political vicissitudes before the arrival

of charismatic leaders, to say nothing of the development of research itself,

before an idea or a discovery or a profound moral aspiration sees the light of

day, becomes a reality. The agent of social change, the man of action like

the intellectual, must follow the narrow path of politics, never better defined

than as the art of the possible.

Instead of seeking logic or the needs inherent

in the social structure, it is infinitely more productive and intellectually more

interesting to stimulate interactions and changes capable of orienting the evolu-

tion of collective and individual behaviour through limited action on precise

points of the social organization.

— 60 =

. — SOCIAL DEFENCE : EVALUATION OF EXPERIMENTS

In the second part of this account, we shall examine the most important

experiments in social defence measures.

Let us say, first of all, that these

experiments are based on the etiology of delinquent behaviour, which we have

outlined above.

We shall limit ourselves largely to experiments in America,

because in Europe sociology has not prompted any social intervention of this

kind.

European sociology has exerted its influence more in the form of a

social philosophy, which plays quite an important role in the development of

social securiy systems, much more prevalent in these countries than in North

America. To effect changes in the social structure, European sociologists imme-

diately directed their activities towards power and towards the institutional

embodiment of power—the State.

The role of the State in traditionally

important in continental Europe and has become so in Great Britain as well,

since the post-war labour experiment.

On our continent, the role of the State

is traditionally limited. A communal type of democracy, greatly decentralized

and giving free rein to the social and economic forces, constitutes not only

the political credo of the North American, but represents for him the most

striking proof of the success and unequalled efficiency of his socio-economic

system.

As a result, the underlying philosophy of the experiments we are

about to recount conforms to this deeply liberal thinking : the collective forces

must be stimulated, reinforced and put in a position to resolve the challenge

of their existence by their own efforts.

If the system of “help yourself’does

not show the results anticipated, the fault is not with the individual, as was

believed for a very long time under the influence of a psychological concept

that ignored the most elementary social realities.

It is now understood that

the weight of collective forces cannot be called upon except through joint

action, centred, not upon the individual, but on the social structures.

This is

neither the time nor the place to pass judgment on the medico-psychological

philosophy which gave rise to the methods of treatment used in most countries

for the past several years.

But there is more and more evidence that the

institutionalization of the young delinquent to effect his resocialization, is the

most costly and least effective solution, similar to the imprisonment of adult

criminals behind stone walls.

Even the most individualized treatment in the

best equipped institutions appears to be wasted effort if the social organization

is not altered by preventive measures.

The high rate of recidivism among ex-

inmates of reform institutions is warning enough.

Burgess (1961),pioneer in

community action in Chicago, made the following criticism : the adaptation of

the young takes place in artificial surroundings which have nothing in common

with those of his everyday life; few institutions can undertake individual

methods of re-education

the children as a group resist the adults, greatly

limiting whatever therapeutic action might be possible.

Under these condi-

tions, the reform school becomes the school for crime, the culture of peers

having replaced the culture of the conformist society that the educators are

trying to implant. (p. 548).

a) Types of social defence measures and general strategy of application

There are three general ways of approaching preventive action : (1) all

political, economic and social measures for the amelioration of the living

conditions of needy families, contribute to a reduction in the delinquent poten-

tial ; (2) social intervention to alter the particular social structures or institutions

whose ill-function is conducive to delinquency ; (3) the creation or improvement

of services provided for persons or groups having problems of adjustment.

All these have one thing in common : they presuppose that delinquent behaviour

is a response to an environment situation of a socio-cultural order.

(1) THE SOCIAL LEGISLATION in our countries, both European and

American, from the laws forbidding child labour to the programmes for in-

creased professional training, are the best examples of this type of prevention.

For every school opened, a prison closed | was said at the end of the XIXth

century during the political campaigns for compulsory education for the general

public.

The Fabian Movement in Britain, Marxism-Leninism during the first

years of the socialist experiment in Russia and social democracy, such as

Christian socialism, all shared this great faith in the preventive quality of

full employment, family housing, etc.

Social services were established to come

to the aid of the needy, and counselling was made available in matters of

the family, education, hygiene, etc.

We cannot deny the benificial effects of this kind of prevention

the

crimes of need, associated with mental, moral and social under-development,

were eliminated from large sections of the population.

One might say that they

are almost non-existent in certain countries like Scandinavia and England, in

many Canadian provinces and in certain American States.

If a certain kind

of delinquency could be eliminated, then why do others persist ? This problem

cannot be dicussed here; we shall simply say that no universally effective

measure of prevention has yet been conceived. Without doubt, it was rather

an over-simplification to suppose that improving general living conditions would

eliminate delinquency

it diminuted a certain kind of delinquent, but new condi-

tions have created others.

(2) The concerted attack upon STRUCTURES, organizations, etc., whose

ill-function induces delinquent behaviour, is the latest and more interesting

of the experiments that we are about to examine in detail.

These socio-

logical interventions constitute the most positive and the most imaginative contri-

bution of the social sciences to the work of prevention.

Let us mention some

of the most important : the “Chicago Area Project’”’, Action for Boston Community

Development (ABCD), Community Progress Inc. (CPl) New Haven, HARYOU-Act,

Central Harlem, NewYork, Mobilization for Youth (MFY), New York City, and

the United Planning Organization (UPO), Washinton, D.C. A whole series

of experiments, called 'demonstrating projects’ were financed by federal orga-

nizations in Washinton, in collaboration with the States, the municipalities and

private foundations—the Ford Foundation, in particular.

(See Spergel, 1966).

Although most of these projects include certain elements of evaluation research,

— 62 --

it is still too soon to come to any precise conclusions as to the extent of their

efficacy.

The activities of the “clubs de prevention” in France are akin to

this type of prevention (Peyre, 1964).

(3) The SERVICES offered to the socially handicapped, to delinquents, by

representatives of the courts, probation services, re-education centres, etc.,

have become more numerous since the war.

It is obvious that a well-trained

probation officer with thirty people to supervise has a different preventive

effect from one who has two hundred and his good will in place of profes-

sional training.

The existence of special services for young people within the

municipal police forces has had incontestable preventive results.

The detection

of pre-delinquency in schools comprising a great many under-privileged pupils

is of the utmost importance.

Finally, the establishment of a new kind of

community re-education centre, based on the sociological concept of the

sources of delinquency, could open new perspectives in the matter of preven-

tion : we shall examine the “Provo de Utah” case, a true pilot study on this

subject.

b) General

strategy of prevention

Any prevention work must clearly use these three kinds of measures

simultaneously ; none of them has exclusive curative powers.

Nevertheless,

there is a relative withdrawal from the use of techniques centred on the indivi-

dual, in other words, the medico-psychological tradition, perpetuated by most

of the social services whose traditions were formed during the period between

the two World Wars.

These techniques are not at all suvited to the tremendous

number of cases, or the dimension and scale of problems such as we are

facing today. Only collective methods, of the community type, stand a chance

of attaining a result commensurate with the expectations of the public.

This community approach has multiple implications from the point of

view of strategy

if it is the community that is producing delinquency, it

should be able to release the forces necessary to counterbalance the effects

of its forces of disorganization.

Local leadership, assisted by expert advisers

brought in from outside the community, is therefore essential.

Two of the mainstays of community prevention should be the school and

the neighbourhood centres.

We shall see their function in greater detail.

The quality of services in the established agencies, such as probation,

services for needy families, etc. should be improved.

Volunteers from the area should be working with highly qualified person-

nel. New psycho-social techniques, adapted from the customary “case-work”

79 6

and “group work” approach should be handled by “detached workers

’

street

workers”, etc., who should gradually attain a professional status.

The coordination of all these services, the planning and arranging of all

activities, interventions, etc., should be carried out from a single centre, prefe-

rably situated in the city hall, directly subject to the mayor.

In effect, inno-

vations must be made on such a scale that bureaucratic resistance must be

transcended by an authority beyond question : the police must work with the

customary social agencies and these must work with the new types of interven-

tion units, etc.

Difficult administrative problems have arisen because of the

intricacies of jurisdiction and organization in these services, and if the results

of these experiments have been inconclusive to date, it is due in large measure

to the conflicts and difficulties which have arisen in the areas of coordination

and management.

Finally, an evaluation through scientific research should be included in

each experiment

it is obvious that basic services can be guaranteed without

concern for their effects : to come to the aid of people who are destitute needs

But the effects of more complex intervention, such

no “scientific”’ justification.

as some of the cases we shall analyze in a moment, should be measured and

evaluated so that, like clinical experiments, they gradually become a heritage

of learning which will afford the more effective planning of future interventions.

Only by so doing can it no longer be said that social prevention is like a

medicine, the effects of which are unknown, administered for an illness the

causes of which are likewise unknown.

Let us say in concluding these considerations of strategy, that true preven-

tion can only be social

institutional re-education is a make-shift involving

risks similar to those which characterize the “correction” of adults.

If we

are resorting more and more to “‘community” methods of treatment for the

latter, what can be said of the importance of these methods for delinquent

or pre-delinquent adolescents ?

1) ANALYSIS OF SOCIAL DEFENCE MEASURES

We shall consecutively examine the Chicago Area Project, the MFY

Project, the Haryou Act, the ABCD of Boston and the CPl of New Haven.

The oldest

The Chicago Area Project (Burgess 1961, Sorrentino 1959).

of these projects started barely thirty years ago.

At the instigation of socio-

logists from the University of Chicago, particularly Clifford Shaw, the follo-

wing ideas were used as a point of departure

The responsibility for the planning and operating of the programmes

a)

must devolve upon the inhabitants of the community. A council must

then be set up, comprising representatives of the churches, the unions,

businesses, etc. to guarantee coordination of activities.

b)

The majority of workers employed for the project must live in the area.

The Council must work in strict collaboration with all the organizations

<)

in the district : social agencies, schools, courts, police, etc.

d)

Cases of serious psychic disturbance must be referred to the existing

psychiatric services.

T e

This insistence on the mobilization of human resources is absolutely vital.

It is the absence of community influence which precipitates delinquency

instead of being left out on the periphery—*outcasts”— by the community.

The creation of these committees, councils, etc., which offered their services

to already existing official agencies, succeeded in mobilizing local leader-

ship ; after twenty years of existence on an experimental basis, the State of

lllinois integrated the project in its lllinois Youth Commission and the research

services in its community services section.

The final objective is to have organi-

zations maintained and financed by committees in the area : State personnel

should act only in advisory capacity. The ideal of self-government, of the

responsibility of citizens for their own community, is thus achieved.

What was the result of the project ?

Undeniably, the rate of delin-

quency diminished, as well as the rate of recidivism among ex-prisoners living

in the community. The fact that mobilization of local talent could be achievied,

proved that even under the worst socio-economic and cultural conditions,

mankind could always be counted upon.

The organizations created were

remarkably stable and show a tendency to function more and more on their

own

It is evident, however, that these results could not have been attained

without initiative from outside the community. The significant change, in compa-

rison with the past, is that the justifiability of this type of intervention is today

recognized by the vast majority of public opinion.

After this pioneer project, the 60's saw the emergence of a whole series

of experiments.

Legislation, beginning with the Juvenile Delinquency and

Youth Offences Control Act of 1961, to the Community Services Act in 1966,

a series of federal laws in conjunction with the efforts of the states and

municipalities, made the beginning of many realizations possible.

All these

projects have this in common

they are oriented towards extremely under-

privileged populations, for whom the ordinary methods of education, assistance,

etc.,, were of no avail.

Those who conceived them, first had to study the

nature of the problem (sociological diagnosis) and established a strategy

necessarily adaptable to the community, to achieve a well-thought-out inter-

We shall

vention, effective on both a short term and a long-term basis.

realize beyond doubt the scope and ambition of parallel projects : Haryou

and MFY operated in cities of 1,700,000 inhabitants (Manhattan) indirectly

affecting an area which had respectively 233 and 108 thousand inhabitants.

ABCD operated in Boston (697 thousand inhabitants) in an area of 77 thousand

inhabitants.

CPl in a city of 152 thousand inhabitants (New Haven) in the

heart of a region of 90 thousand. After a sociological analysis of the envi-

ronment it was a matter of establishing channels of communication, of breaking

down the socio-economic barriers, the political bastions of “vested interests”,

and of surmounting problems of psychic unbalance, the result of adverse socio-

cultural conditions (especially for blacks and Puerto-Ricans).

The sums used

were enormous, compared with those ordinarily used by specialists in the

social sciences

preparation for project MFY cost a half million dollars, and

in 1962, MFY received $13,200,000 from various sources.

Compared with

— 6

=

)

a—

the need and the size of the task, these sums are ridiculously low : MFY

maintained the services of 24 persons of high professional training, ABCD of

14 and CPl of 17. The socio-political climate played a major role in the

strategy and impact anticipated in contemporary America.

“The Black Ghetto”,

by Kenneth Clark, (1965) gives a very good picture of the sociological and

moral background of the project.

MFY was directed toward a more socially

diversifield public and the influence of Cloward and Ohlin was decisive in the

concept of their project; but it represented a negligible fraction (only 6 %)

of the total population of the community. How to extrapolate under these

conditions, at the community level, how to act effectively on the power struc-

ture ? ABCD tried to establish a coalition between the municipal bureaucracy,

relatively progressive, and the moderately progressive forces supporting the

project.

Finally in New Haven, the project was a result of the efforts of Mayor

Richard Lee, who had led one the major experiments in urban renewal during

the middle 50’s the United States.

The MFY Project was perhaps the most all encompassing, both in its aims

and in the methods and techniques used to achieve them.

We will examine it

more in detail.

Established in the lower East Side of Manhattan in an area

where delinquency had increased by 70 %, in three years, the first plans were

drawn up in 1958.

The work started in 1962, aiming to create “‘opportuni-

ties”, possibilities for the youth in this area, at the same time, by a concerted

effort, all the institutions which impeded future prospects.

The following problems were tackled :

a)

Employment and professional training ;

b)

Instruction ;

<)

Community organization ;

Housing ;

e)

Legal aid ;

f)

Services for individuals and families ;

g)

Services to groups, and finally,

h)

A training centre for its own personnel, chiefly those recruited from the

local community.

All these services had three functions

To help persons or groups with immediate problems, often referring them

to already existing services.

To study collective and institutional means for resolving the problems at

the root of individual cases, by proposing the setting up of new services,

new legislation etc.

To experiment with as yet untried methods among members of the local

community, who, in the long run, are the only ones who can solve their

own problems.

Employment and professional training.

The aim of the programme set

up is the following : to increase the job qualifications of young people by

ZEaewas

directing them toward existing vocational training centres ; the provide vocatio-

nal guidance so that young people can apply for the kind of work they seem

best fitted for, and to help avoid racial discrimination, made illegal by recent

legislation in Congress.

A Youth Job Centre was created which above all welcomes those who have

dropped out of school, and where evaluation and guidance are given.

Assistance is guaranteed the young people until they are settled in some job

or other.

An Urban Youth Service Corps was created to give employment to

adolescents in community work projects; the up-keep of parks, improving

the neighbourhood, helping in the hopitals, working in garages, efc.

Apprenticeships are assured for those unable to find suitable employment ;

these jobs are carefully selected and he career of the young person is followed

and evaluated by the Centre.

Finally, funds are avaible for those who want to finish their uncompleted

schooling ; supervised courses are given them and a great number of young

people have taken advantage of this programme.

On the whole, many young delinquents, even some from often violent

gangs, participated in these various programmes with considerable success.

Instruction : the failure of a large proportion of young people of under-

privileged background cannot be attributed to congenital disability.

It

1S

rather the inability of the school system, geared for the less handicapped, to

integrate this type of pupil in its programmes.

Thus, in collaboration with the

school authorities, reading clinics were organized, offering parents special

courses for late beginners, and advisors were ready to help develop a moti-

vation for reading among the young people.

A special programme is devoted

to improving and enriching the vocabulary, a lack of which seriously handicaps

the scholastic success of poor children.

Kindergartens were organized to

develop, from earliest childhood, the ability to concentrate and to memorize.

Finally, tutors were sent into the homes to encourage a desire for learning

and stimulate the ambition of the young people and their parents to continue

their education.

Monitors were placed in the schools to watch out for the children who

could not take part in the school programme, and to set up programmes of

special courses.

Experimental schools were established, one elementary and one high

school, to work out teaching methods adapted to these underprivileged areas.

The teachers visit the homes of the pupils to acquaint themselves with the

educational problems they have to contend with.

Attention is given to the train-

ing and interesting of parents in the education of their children, and a sense of

belonging to the community is fostered among the educators as well as the

pupils and their parents.

Ly

Organization of the community in the areas involves considerable problems.

The apathy which comes from a feeling of impotence, and the fatalistic

submission to this state, are strong factors in resisting all attemps to activate

To stir the existing

and make these people responsible for their own destiny.

groups to action was one of the first jobs

professional groups, mutual aid

groups, religious groups, etc.

Campaigns were launched with varied success

for the “extermination of rats”, which even became a slogan for election

candidates.

The run down condition of the houses and the overcrowding of lodgings

constitute one of the major problems in this area.

The Housing Services are

assisted by advice from those who want ta take plegal action against land-

lords who do not conform to the health and sanitation regulations, and who

refuse to make essential repairs.

They are developing plans to redistribute

housing zones, with loans which the government can offer for this kind of

project ; rental strikes are organized and pressure of all kinds brought to bear

on the municipal authorities to get better services.

legal aid is a major factor in contemporary American social policy.

Equality before the law was merely a fiction for underprivileged people, who

did not know their rights and often lived, unwillingly, under conditions which

made them delinquents, to all intents and purposes.

These people’s faith in

the democratic institutions of a country is conditioned much more by whether

they have experienced justice or injustice than by many other factors.

The

importance of legal aid morally is therefore far greater than its material

importance.

The services to individuals and families are dispensed through spokesmen

for the neighbourhood centres.

First of all, they direct the needy to existing

agencies which are unknown to them ; in this way, they help to make these

agencies more effective and more consistent with the objectives assigned to

them.

Besides this function as intermediary, these centres gather information

and set up files that will serve as a basis on which to propose changes in

official procedures affecting the services, in fact, to suggest new legislation

for the establisment of institutions that would meet exact needs and sometimes

new needs.

Advisory centres were set up to help consumers plan their expenses

better, to help those using the social services, those who have housing pro-

blems, etc.

We would draw particular attention to the institution of home visitors

who help in emergencies and at the same time teach the people how to cope

with crises.

A mental hygiene clinic is making every effort to adapt standard

therapeutic methods to this type of population, endeavouring above all to

work out methods of treatment centred on the family.

The use of narcotics is very widespread, and substantial services were

organized to prevent it.

As the entry of drugs into the area could not be

stopped, efforts were made, through special services and mobile intervention

units, to seek out addicts and administer minimum doses to them, while under-

— 68 —

taking, at the same time, to have them undergo treatment to have them cured.

Group treatment units are organized on an experimental basis, and special

services are trying to segregate those apt to become drug habitues—to have

them tested beforehand.

A central service supplies all these groups with

materials, and plans the experimental and long-term activities in the field.

Finally, delinquents are released either on probation, or taken in charge

even before they leave the institutions to help them reestablish themselves in

society.

Group services are, above all, directed toward the organization of public

recreation and educational

activities.

Clubs and cafes are organized to

provide a free atmosphere in which the young can air their feelings and

Their

express themselves away from the restrictions of the adult world.

feelings of isolation are overcome in this way, and activities made available

to substitute those offered by the often antisocial gangs.

The Youth-adult action group permits a joint search for ideals and the

Here the young

assertion of the point of view of these particular groups.

people can say what they expect from society and learn what society expects

from them.

The things they find wrong with the large social institutions—

employers, police, the courts, churches, political parties, municipal adminis-

tration, etc., are discussed, the problems are specified, projects are planned

and brought to the authorities concerned, sometimes by a delegation.

The teams are organized to undertake different ventures together, in

this way mobilizing the energies and natural inclinations of this type of youth

for action and experience.

Often in the company of “detached workers”,

monitors working and living with them, these teams channelize their energies

towards positive objectives which otherwise would inevitably be spent in anti-

social pursuits.

Particular attention was devoted to the establishment of programmes to

form groups of young pre-adolescents, from 8 to 12 years, in order to avoid

their being absorbed into anti-social gangs.

All sorts of activities, recrea-

tional and educational, were arranged for them, and the cooperation of

parents was also assured.

A special centre saw to the permanent training of MFY personnel.

Not

only were the teams recruited from the community trained, but study sessions

were held for professional members so they could evaluate the progress of

the work as a whecle, and adjust objectives and methods, where needed, to

ever changing or newly discovered situations.

Finally, an important research service proceeded to evaluate the work

of all the MFY centres ; this work was considered by the directors to be as

important as all the rest of the programme, because in spite of its size, MFY

was, nonetheless, a controlled social experiment, a ‘“demonstration project”

whose appraisal would serve for other similar experiments.

wa B0 =

As can be seen, no facet of community activity escaped the attention or

activities of the MFY; there was a constant interaction between short-term

objectives (seeing that the needy had winter clothes) and long-term objectives

(to establish a policy of immigration and reception which would guarantee

this problem a permanent and institutionalized solution).

The resistance of

certain authorities, of certain pressure groups, who had great influence in

political circles, involved the MFY in serious conflicts which seemed, for a

while, as though they would compromise the outcome of the project.

The

accusation of political extremism was hurled, but finally serenity prevailed and

the project continued.

We shall comment later on on the ideological and

political implications of such programmes.

The Haryou-Act (Harlem Youth Opportunities Unlimited in Conjunction with

Associated Community Teams) was faced with a community in Manhattan, al-

most exclusively black, living under the worst human conditions possible.

This

is the project with the most radical ideas, not hesitating to put in question

the political and social structure of the community.

Rejecting the trend toward

services, the project insists on the necessity of mobilizing local leadership in

order to proceed with massive social changes.

Elections were organized block

by block, the electors rallied house by house.

Its councillors for the area

elected, they were given the role of organizing, initiating, mobilizing and

moulding community action to meet the needs of the inhabitants.

Being

strongly politicized, the project had many conflicts with the existing political

groups who feared for their influence over their own electors.

The organization

itself is similar to that of the MFY : it is directed toward total involvement in

all areas of community life.

Its staff, however, lacks sufficient black American

leadership.

The ABCD of Boston and the CPlI of New Haven are more standard,

traditional enterprises.

They were mainly prompted by the existing services

which wanted to improve their own efficiency.

Realizing that the reconstruc-

tion of the cities could not be achieved without restructuring the under-

privileged communities which populated and marred certain areas, the municipal

authorities, in a spirit of sound technocracy, considered social planning just

as important as the redistribution of urban space by architects, engineers and

city planners.

The focal point of these programmes was the community centre

of the neighbourhood, where the workers had to collaborate with those who

required their aid. They did not work for the people, however, but with them ;

this was the pattern set by Shaw in Chicago 35 years ago, and which has

All the services, schools,

become a unanimously accepted working principle.

churches, clinics, and social agencies are used in coordination, guided by

the elected councillors of the community. This is a far cry from the traditio-

nal social service : the word “client” appears no longer in the terminology.

Participators are sought and organized under the guidance of a technical

councillor, a “resource person”, who suggests, informs, but never decides.

The organization and problems of the UPO are similar to those of the

two preceding projects.

It has special political problems, however, due to

o=

the municipal government of the Federal Capital.

The municipal council is

not elected, but is appointed directly by the President.

This situation creates

numerous problems with regard to the redivision of power within the community.

We see then, that this type of community preventive action serves a double

function : increasingly effective administration of welfare services (traditional

function) and the organization of populations at the community level to take

Both

in hand the management of their own affairs (innovational function).

functions require the manipulation and coordination of the communities, a

knowledge of the dynamics of group activity, the profound study of a social

philosophy able to serve as an intellectual and moral incentive for sustained

action.

Finally, a strategy for political action must be worked out because

of the need to interfere in the game of balance of power—power that dispenses

not only subsidies, but deflnes policies which, in the end, will affect these

programmes.

One has the impression, on examining the literature written on

the subject, that we are only at the initial stage in all this.

The empiricism

which characterizes American social action tolerates this vague state of affairs

well enough, which in any case could not be replaced right now by anything

more structured. A precise doctrine, which would have meaning only in terms

of its irrelevance in the present circumstances, as a rule only attracts radicals

in the House.

Nonetheless, it is to be hoped that the problems we are

raising will be given further careful study by the next generation of resear-

chers and men of action.

In the meantime, we can conclude this chapter with the observations

of Mc Iver (1967), whose recent work gives an enlightening synthesis of the

questions we have brought up here

a)

Since delinquency has diverse aspects and manifests itself in many forms,

action in dealing with its causes should also be greatly diversified

the

whole community should be mobilized to this effect.

b)

The programmes should be centred in the neighbourhood with sufficiently

natural boundaries to assure a close and effective collaboration between

the inhabitants and those organizing the services.

<)

Even though problems should be dealt with at the community level, it is

well to promote one or another of the services and concentrate special

efforts on it, as, for example, training for employment, and establishing

branches in each community in a neighbourhood shool or centre.

Far-reaching private projects like MFY and Haryou should be endowed

with an administrative council which, without designating specific ope-

rations, could offer advice that would avoid major conflicts with the

established authorities (Mc Iver, p. 137-138).

2)

ANALYSIS OF DETERRENCE IN INSTITUTIONS

After having examined several projects for community action, let us look

at preventive work within a number of important services.

We shall start

—

7M1 —

from the social angle

what does the sociological etiology of delinquency

contribute to the more efficient functioning of these institutions ?

The police are in the vanguard of the fight against delinquency; they

are even more so where prevention is concerned.

Only a fraction of the

number of delinquents are sent to prison.

A much larger proportion enter

into contact with the police.

The peace officer has wide discretionary powers

in the choice of the measures he will take with regard to a young person ;

they may run from a mere warning to arrest in the case of physical violence.

In the eyes of the people in underprivileged areas, the police officer is law

and justice incarnate.

His responsibility as such should not be under-estimated.

He must work together with the family, the schools, the social agencies and

He

IS

children’s aid clinics, to name only the most important institutions.

looked upon by marginal groups, especially in large American cities, as an

enemy.

He cannot fulfil his true function if he identifies with this distorted

image of himself.

Can we say that our policemen are equai to the task of

prevention so complex and yet so very necessary ?

The answer must be

speculative.

For several decades, social services were organized within the

police forces of large cities to handle young people exclusively.

The expe-

riment in Detroit is particularly significant in this respect

delinquency was

considerably reduced after the police directed more of their activities toward

social prevention, as a result of this special service.

Police assigned to these services should receive specialized training in

the human sciences, especially in criminology.

They could then serve to make

Furthermore, much

the entire police service aware of this kind of problem.

greater attention than in the past must be devoted to the public image of the

police, which will never improve except through the attitude and behaviour

of the police themselves.

The respect they ought to command must stem from

an understanding of their deterrent role by the public, and should be commen-

surate with the professional training of the entire police force.

The Juvenile Courts.

Preventive measures in the Courts, as in the police

forces, result in increased effectiveness.

This effectiveness unfortunately is

not very great.

The public authorities have not provided adequate means

for the realization of the objectives of prevention.

The magistrates perfor-

ming this function ought to receive appropriate training, for prolonged law

practice does not seem sufficient in this respect.

They should avail them-

selves of the diagnostic services attached to the courts so that they can arrive

at the best possible arrangements for the cases referred to them.

The chil-

dren’s court should become part of a legal complex which would encompass

the whole family ; experience shows that the problems that beset children

usually involve the whole family.

Fewer cases should be handled “legally” ;

Probation

most cases could be dealt with before the actual legal phase.

services, with well-trained personnel, not overburdened by too heavy a case-

load, should be available, as well as a network of institutions and community

treatment centres to direct maladjusted young people to the services appro-

priate for their particular cases.

The State should assure the coordination

of the existing services as well as their extension and improvment.

B

In conclusion, the juvenile courts, integrated with a family court, must

render diagnostic services, and specially trained magistrates must be able

to rely on a probation service and a network of specialized institutions, all

coordinated at the municipal and regional community level.

Under these

conditions, the work of the Courts could become increasingly effective in

prevention.

RESOCIALIZATION INSTITUTIONS FOR YOUNG PEOPLE

We have already said : most houses of reform have a limited effectiveness,

Their

proportionately comparable to that of the penal institutions for adults.

administration is expensive, their construction prohibitive, and the need for

specialized personnel most important.

As with preventive community action,

experiments have been conducted over the past few years in the field of

treatment which could offer alternatives to existing reform institutions, or at

least for a large portion of their present potential inmates.

Therapeutic

communities will always be needed for a few young people who are seriously

disturbed and dangerous.

Many others could benefit from experiences like

Heighfield and Provo.

The children at Heighfield, New Jersey, are about twenty in number ;

housed in the institution, they work in a large hospital under the supervision

of people who help them adjust to their work.

In this way, their reliationship

with the community remains intact.

Moreover, discussion groups are organized

or are held spontaneously, where the young people can talk about their

problems.

The supervisor never interferes except to give minimum direction.

The children examine their past, their present situation and discuss their

future.

Thus, by verbalizing them, they realize the problems each of them

must face.

The average stay is four months and the rate of recidivism lower

than in traditional institutions.

Although the experiment was very limited in

scope, it deserves very special consideration, because the very basis of the

activity is the restructuring of the personality through group experience.

It

is the peer group, whose influence has often been decisive in careers of

delinquency, which will guarantee the basis for a re-evaluation of the role

and orientation of the young. The cost of such a centre is infinitely less than

that of other institutions.

This is reason enough for us to urge expansion of

the experiment.

THE PROVO EXPERIMENT AT PINEHILL, UTAH

This was carried out under the guidance of the Juvenile Court, on the

initiative of Judge Paxman.

The method is similar to that of Heighfield : the

group is the source of the discipline that makes conformity possible.

The

young people, often dangerous recidivists, are placed in the institution, but

work outside, participating, meanwhile, in discussion groups.

The average

Pk s,

stay is 4 to 7 months.

The penalty for not cooperating is prison, and the

key to liberation lies in the hands of the group.

The supervisors interfere

The

very little : they lead the discussion groups, but do not participate.

results seem fairly satisfactory, although precise evaluations have not yet been

made ; in any case, the cost of such an institution is one tenth the cost of a

stay in a reform school.

On the basis of these two experiments, it might be useful to try to

recapitulate the main sociological hypotheses underlying our whole thesis in

terms of treatment : delinquents are not only an integral part of sub-cultures

or family groups, but also of complex socio-economic and cultural systems.

Thus they know the rules of conventional morality very well, since they were

educated in this type of atmosphere.

Because of psychological or socio-

logical problems, they become part of a criminal sub-culture instead of

becoming part of a conventional culture.

They have, therefore, a deep-seated

ambivalence as to the legitimacy of their behaviour.

The criminal sub-cullture

If we

offers them this legitimacy and supports them in their criminal careers.

could destroy the “substratum® of support, we would have a chance to

legitimize the values of conventional society in the eyes of the delinquent youth.

The objectives of these experiments with treatment are

:

.

a)

to make clear to all concerned these alternatives between the delinquent

and conventional solution to a problem ;

b)

to lead delinquents to question the ultimate utility of the delinquent

solution ;

<)

to help them accept the conventional alternatives as valid and meaningful

at their own level of experience.

The fundamental underlying hypothesis is, then, that delinquent behaviour

is aimed at nothing more than acquiring the objectives that society instils in

each of us, through the choice of the illegal alternative.

The main consequences for this kind of treatment are given by Empey

(1967), and we give a resume of them : (p. 379-380)

a)

Delinquent behaviour being a product of the group, the treatment should

be applied to the delinquent as a member of specific groups which are

part of a delinquent system, and not as a sick person, well meaning

but ill-advised.

b)

Most delinquents are ideologically and affectively dedicated to a delin-

quent culture ; the first thing the educator has to do is to make him

anxious and ambivalent about the usefulness of such a system for him.

<)

To achieve this, it is necessary that the delinquent assume the responsi-

bility for his acts, given the choice of a delinquent or non-delinquent

solution to his problems ; a responsibility which he shares, however, with

his peers in the community.

These peers serve the same function as

socializers during the process of re-education as they served before in

The sanction of a « bad » decision should be

the criminogenic milieu.

given by the community.

Sl

d)

Delinquent feelings, just like conventional opinions, should be expressed

freely ; young people should have the experience of testing the fact that

it won't do them any harm to argue for the delinquent solution ; they

From this point

should be able to compare it freely with other solutions.

of view, one must avoid too rigid controls which would hinder this joint

search for the most satisfactory solutions, by rewarding the « good »

solution.

Penalties are applied, however, when the delinquent solution

prevails in actual fact.

e)

The peer group then, is the main instrument of therapy : lectures, indi-

vidual therapy, transference, etc., will be avoided.

Every effort is made,

by changing the orientation of the group, to develop an acceptance

of the conventional alternative, and the repection of the delinquent solu-

tion as being inadequate and useless.

The rewards will be assured,

not only for the success in working and functioning within the group,

but also because of the success in influencing others not to behave as

delinquents.

Let us note in closing, that psychotic children were eliminated from these

experiments.

In conclusion, we can say that (a) without exception, young people should

not be placed in institutions, but all possibilities for community treatment should

be utilized ; (b) the institutions must be very diversified and house only very

small groups of young people; (c) services for community aid after leaving

the institutions must be considered vital ; the absence of such assistance could

compromise the results of the best methods of institutional resocialization,

CONCLUSIONS

This general survey, devoted to social measures in the prevention of

delinquency, creates many more problems than it solves.

That is because

we are at the dawn of a new era in the use of the social sciences in the

conquest of social forces, as is the case in the natural sciences, the medical

sciences, and more recently, the psychological sciences.

Few concrete conclu-

sions can be claimed, but certain indications, nontheless, can be observed.

a)

With regard to the causes of delinquency, we can say that there

are societies and cultures which, just as certain bio-physical organisms are

vulnerable to disease, are more predisposed to delinquent behaviour than

others.

It is obvious that urban society in the metropolitan regions, characte-

rized by ethnic ghettos closed in by ignorance, stricken by unemployment and

sickness secrete delinquency as swamps secrete malaria.

One may attempt

to cure the effects of the disease with vaccines or individualized treatment ;

but in spite of everything, the drying up of the marshes remains the only way

to completely limit the spread of the disease.

The recent tragic incidents that

TR [ P

are taking place in the United States are a heart-breaking example of the

proof of this, proclaimed so many times by researchers, men of action and

enlightened politicians.

The collective resistance to social

solutions for the

prevention of delinquency, witnessed for years, is a terrible blow to any

confidence one might have in human reason.

Furthermore, one should not hesitate to engage in comparative research

in order to specify the socio-cultural structures and social and economic

organizations which are less predisposed to delinquency than others.

The

frustration of desires and ambitions legitimately inculcated in people can only

lead to a violent contestation of the legality of the established order.

Inter-

cultural comparison will enable us to clarify the socio-cultural and economic

The

characteristics which are associated with much delinquent behaviour.

theories of societies all over the world could thus be studied, serving as a

basis for joint social intervention.

b)

This intervention, this “clinica

|97

sociology, is in its infancy with

regard to collective structures.

At the level of the individual as of the group,

the techniques of intervention were restated, due to progress in scientific

psychology, the benefits of which were also felt, to a certain extent, by social

psychology. Political economy, for its part, based on the considerable progress

in the economic sciences, has played an important role in the orientation of the

economic life of modern countries.

Sociology has not undergone the same

development, and this explains the relative poverty and the approximate and

provisionary character of the techniques of social intervention as regards

collective structures.

A joint step in sociological theory and practice must be

taken to assure the progressive edification of concepts and operational techniques

in a dialectic interaction.

To date, sociology, and criminology even more so,

were trailing behind the economic and psychological sciences, from which they

borrowed a great deal.

The time has come in our field of interest to accept

the challenge of the social fact; it is by facing the problems we have evoked

in these pages, not completely at first, but profitting more and more from the

experience acquired, and going on to its permanent evaluation, that we will

finally make social intervention in collective behaviour more certain, more

“scientific”.

<)

Finally, on the question of the strategy for social measures in the

prevention of delinquency, all that has gone before assures us that no single

type of intervention in any of the special socio-cultural organizations or systems

has the required therapeutic effect : doing away with unemployment, vocational

training, adjustments in education, the improving of family relations, institu-

tional reeducation, etc., etc., are partial solutions which can have only partial

success.

In attacking the problem, one must take into account the socio-

cultural structure and one must plan at the community level.

Those who have

had any experience in community organization know that this is easier said

than done.

In our democratic societies, it is actually very difficult to concen-

trate authority, although this is absolutely necessary, in the hands of a single

organization (the division of the police is highly significant in this respect),

and it is even more difficult to have the consequences of preventive action

A 0E—

accepted in a society whose moral and political credo is responsibility of the

individual.

That this responsibility is a fallacy under certain circusmtances

is what the social sciences have been trying to show for almost a century.

But myths die hard, and the supplication of divine authority still occurs in

social policy, as bold and clear in our day as the 'finger of God' was suffi-

cient explanation to satisfy our ignorance of the physical world in past cen-

turies.

If | cannot terminate these deliberations with any formula for precise

action, it is because | am aware of the incredible difficulty of the task incum-

bent upon us.

And | shall conclude by heartily endorsing the proposal of

Kenneth Clark, made in the New York Times in August, 1967, during the

bloody revolt of the blacks: must we not declare a national emergency such

as gave birth to that formidable concentration of intellectual, technological

and financial energy at Los Alamos, during the war, that gave America and

the free world the ultimate weapon that was able to put an end to the war?

By mobilizing all the energies and all the means at our disposal in our

liberal democracies, we might hope to combine adequate resources to apply

methods of intervention in the social field comparable to those already being

used in the fields of psychology and economics.

Just as the great economic

crises of the past accelerated the development of the economic sciences, as

the great psychological upheavals gave a decisive impetus to the progress

of psychotherapy, we can hope that the revolts and insurrections that we are

witnessing, almost helplessly, give birth to a movement which will result

in a true science of social intervention in collective structures, or,

if one

prefers, a true social scientific policy.

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A, |

A CRITIQUE OF INSTITUTIONAL CARE

by P. CLAIRMONTE

Research Fellow, Behavioural Sciences Research Programme,

Department of Psychiatry and Neurology,

University of Ibadan

There is a widespread mythology in liberal circles in Britain and America

that treatment oriented regimes are the key to the problem of the control of

crime and delinquency.

(Studies of treatment regimes, use the word treat-

ment to contrast with discipline, custody, etc.: and it is in this sense that

I shall use it).

Studies of these regimes have done nothing to destroy this

myth and are often taken to support it.

These studies invariably show that

staff and inmates under treatment regimes are more friendly to each other,

talk freely to each other, indeed that the whole atmosphere of the institution

is more relaxed and congenial.

Because of this, it seems to be assumed

without any empirical justification, that by some mystical process of spon-

taneous combustion, the inmates are more available to the influence of staff

values.

Unfortunately for therapeutic mystification however what the hard

evidence suggests, as | shall show, is that inmates are merely temporarily

making the most of more pleasant conditions.

Their basic attitudes remain

unaffected.

It is implicitly assumed in studies of penal treatment organisations not

only that criteria of recidivism rates are too difficult to assess, but also that

they are irrelevant.

At the beginning of their study Street, Vinter and Perrow

state that they have no data on recidivism, but only on individual attitudes,

co-operation and hostility, variation and change in perspective.

And yet, to the layman, reconviction rates are the acid test of the effec-

tiveness of a penal regime.

How can we account for the apparently naive

concern with improved staff/inmate relationships, at the expense of a hard

headed assessment of the real improvement or lack of improvement in rehabili-

tation ?

Even since Clemmer, immense emphasis has been put on the crimino-

genic influence exerted by the inmate culture in traditional penal regimes.

The contaminating influence of the inmate social system, and its coercive power

over the individual inmate, has been a convenient explanation of the failure

of penal establishments to reduce rates of recidivism.

It is this that has

permitted elliptical

propositions about improved potential

in organisations

where treatment goals have led to improved rapport between inmates and staff.

S )

A number of the conclusions drawn about life within an inmate social

For

system, both in traditional and treatment regimes, are obviously true.

instance, some of these observations could be summed up by saying that

life is more unpleasant for the average prisoner under a traditional regime

than under a treatment regime.

Sykes has suggested as a result of research in traditional regimes, but

inmate solidarity occurs in response to the pains of imprisonment.

Inmates

are deprived of liberty, goods, heterosexual contact, personal autonomy and

personal security. He suggests that the rigours of confinement are mitigated

by interactions among the prisoners themselves, and that the prisoner’s social

system lies somewhere between two polar extremes.

“Collectivist mutual assis-

tance and support”, and “Every man for himself”.

The greater the cohesi-

veness, the greater the likelihood that the pains of imprisonment will be ren-

dered less severe, but the point of equilibrium will always lie somewhere bet-

ween the two extremes.

Mc Corkle says that control is essential in a maximum security prison

(in contrast with a permissive regime), to protect the inmates from intimidation

by other inmates.

And Sykes and Messinger suggest that inmate society is

a response to attacks on the inmate’s integrity, that he must find a way to

This has been called

ward off frequent reminders of his moral unworthiness.

“rejecting the rejectors.”

Celmmer’s leaders of the inmate subculture were more criminalistic than

other inmates, they epitomised the inmate norms of doing your own time,

rejecting the staff and their values, and being strong and aloof.

In contrast to all of this we are told by Street, Vinter and Perrow that

“the characteristics and functions of informal groups vary with the organisa-

tional context™.

The inmate group is certainly potentially oriented to ame-

liorating the deprivations of its members, but there will be an informal group

structure in every institution which will vary according to the balance of

deprivations or gratifications, or in the conditions where it must attempt to

find a solution.

For instance, where deprivations are heavy there will be a tendency

to organize to smuggle contraband, so that this organization may prosper

inmate leaders will emerge with negative attitudes to the staff enforcing the

deprivations.

But where deprivations are slight these leaders may not emerge.

So we are already beginning to see how pressure on the inmates may

relax once the staff become less punitive and more therapeutic in their atti-

tudes.

Life will be pleasanter because the opposition is not intense, one can

get what one wants without fighting so hard for it.

Clearly the inmate culture

adapts to these new conditions.

And yet there is ample evidence that even under a harsh traditional

regime the staff were “corrupted”.

Sykes points out that the power of

custodians is not based on the legitimate anthority of moral compulsion and

=S

In prison

duty to obey which supplies the strength of most organisations.

force, bribery, and cajolery are necessary to achieve compliance.

The guards

are unable to depend on duty or on the direct use of violence, (due to the

low ratio of staff to inmates) so they fall back on rewards and punishments.

Ms Corkle describes three categories of corruption :

1)

Through friendship.

There are many cultural pressures to be a good

Joe and the guard cannot maintain a totally censorious view of the

inmate if he sees him every day.

2)

Corruption through Reciprocity.

There is a lack of incentives as most

have been dispensed conditionally, but automatically, at the beginning

of the sentence.

Constant use of sanctions, such as taking these away,

makes the guard unpopular and he must discover a carrot.

3)

Corruption through default.

Once power is delegated to “trusty” in-

mates it is difficult to get it back.

All of this occurs in a setting where ideal staff values, about which little

The

is said in the literature, are a mirror images of those of the inmate.

staff do not like a “grass”, they distrust an inmate who is too friendly with

them, and they are expected to be fair and impersonal.

Mathiensen has suggested that the standards prevailing in traditional

regimes, the standards of administrators, are capricious, while the standards

of therapists are rational.

Thus for Mathiensen, the loss of remission for

failing to keep one's cell clean would be capricious, while its loss because

one needed further treatment would be rational.

But it is arguable, and |

would argue, that what is described as corruption by the standards of a

traditional (administrative) regime is described as therapy by the standards

of a treatment regime.

“Sucking up” (chessing) to the staff, for instance,

This

IS

would help to obtain an early release under a treatment regime.

Mathiesen’s rationality as it would be seen by an inmate.

Street, Vinter and Perrow for example tell us that integration into the

inmate group predicted willingness to talk to staff about other inmates in

The

treatment institutions while isolates were against “ratting” (grassing).

reverse is true in discipline institutions, where integration into an inmate group

contra-indicated “ratting”, and other co-operation with staff. They also point

out that the staff in a treatment institution consider it a good thing for an inmate

to have friends.

Having friends, in a traditional institution, where staff actively support

the inmate norm, “keep yourself to yourself’, would be considered a sign

of criminality.

While ratting is actively supported by staff in treatment ins-

itutions as a sign of progress and co-operation.

Inmates are well aware that

staff wil respond positively to open admissions of guilt and sickness however

disingenuous they may be and that ratting will be rewarded through thera-

peutic corruption.

Corruption through friendship has become a willingness by the inmate

to form a relationship with therapeutically inclined staff. Corruption through

e

reciprocity has become therapy through group willingness to admit to failure

to live up to therapeutic norms.

It is, | believe, naive to suppose that inmates in an institution with

expressed treatment goals will not develop a social system to take advantage

of the legitimation of staff corruption in terms of therapy.

The Sykes, McCorkle hypothesis of staff corruption and lack of legitimate

authority does not mean that staff do not still have enormous control over

the lives of inmates.

As we have seen the inmate social system is a response

to this control and to the deprivations and attacks on integrity that it permits.

The inmate system in a traditional prison is not the best of all possible worlds,

far from it.

It is the best way under the circumstances of neutralising an

autocratic, powerful and potentially vindictive staff.

Korn and McCorkle describe the non-acculturated inmate as being in double

jeopardy, of rejection both by the larger society and the inmate society. They

point out that there is no escape from the inmate society, one is forced to live

in it, and that roles are limited and maintained with enormous group pressure.

The inmate society is the best avaible modus vivendi, but still a very

unsatisfactory one.

Perhaps its most outstanding feature is that it responds

to the lack of positive rewards.

The formal power of the staff in a traditional

prison is mostly in terms of negative sanctions.

Discipline is based on taking

away the privileges, such as remission and association, which can be expected

automatically by prisoners who “keep their noses clean’, and there is a conse-

quent lack of incentives for positive staff-oriented behaviour.

In such a setting

it is unsurprising to discover an inmate culture centred around negativism.

Doing one's bird, keeping oneself to oneself, not talking to the screws etc.

One of the first concomitant variations with a change of manifest function

along the continuum from custody to treatment is the insistence from staff

that inmates give some positive evidence of co-operation.

This is accompanied

by official backing for what was thought of as corruption (friendship, recipro-

city etc.), for the capricious use of sanctions by staff in the name of treatment.

A capriciousness that would have been as unjust by both staff and inmates in

a traditional institution.

Korn and McCorkle put it like this : “When the professional definies

himself as a friend and helper he is automatically redefined as one to be

exploited, and if he reacts to this, as a betrayer.”

Given the increase, in a treatment oriented organisation, in staff capacity

to interfere or “form relationships”, or affect the inmate's progress towards

release, it is again, not surprising that the inmate culture in terms of its dictum,

“don't interfere with inmate interests”, adapts to the new situation.

And

there are enormous compensations for so adapting.

One way in which the

interaction between staff and inmates may fruitfully be viewed in a treatment

oriented organisation is as an excellent example of “You scratch my back

and I'll scratch yours.”

The whole set up is much pleasanter for everyone.

s iR9s =

It should be noted here that even under the most permissive treatment

regime the power of the custodians is still not based on legitimate authority,

none of the inmates are voluntarily incarcerated, they are rather what J.C.

Spencer calls “unwilling patients”.

A patient in a voluntary therapeutic com-

munity has willingly cashed in his integrity for treatment, he has identified

with staff values and accepted staff guidance.

No involuntary inmate has

ever taken this inmensely significant step of openly avowing that he need

help.

(I am not suggesting that he does or that he does not, which view one

takes depends on one's own value system).

The trend of this argument may already be perceived as suggesting that

apparently desirable changes in the attitudes of inmates under treatment may

merely reflect an adjustment by the inmate culture to take advantage of new

and less unpleasant conditions.

But how

is it then that the advocates of

such regimes are under the impression that there is real potential for indi-

vidual development and improvement, by offenders subjected to this type of

regime ?

In his seminal work Clemmer introduced the concept of prisonisation.

This concept implied a gradual acculturation to inmate (and thus anti-staff),

norms and this could only do harm.

It was thought to be an almost inevi-

table result of prolonged exposure to inmate society.

It is extraordinary that while various eminent researchers have challenged,

for instance, Sykes' hypothesis of inmate solidarity, very few have chal-

lenged that of prisonisation.

One might say that it is accepted axiom that

prisonisation occurs within traditional penal organisations.

One can only sup-

pose that this omission occurs because of one important premise of the ellip-

tical propositions of researchers into treatment organisations.

The concealed

premise is that a decrease in prisonisation will result in acculturation to staff

values.

(If the latter were really true we would be entitled to ask why it is

not reflected in reduced rates of recidivism.)

This unwarranted assumption

of increased opportunity for accuturation to staff values, with its hidden pre-

mise of a decrease in acculturation to inmate values, in its turn based on

the unwarranted presupposition that inmates must acculturate to some values,

can easily be demonstrated.

Research which has attempted to show potential for response to treat-

ment even in traditional regimes has suffered from a number of logical confu-

sions.

One of the most glaring of these has been the confusion between the

concepts of solidarity and prisonisation.

While such research is biased by

the values of the researchers towards showing that there is little solidarity

among prisoners, it is also biased towards showing that there is prisonisation

in the traditional setting.

Glaser for instance implies that there is prisonisation because of “plura-

listic ignorance™.

He quotes Cloward as saying that “prisoners feel cons-

trained to pay lip service to deviant norms, and each thinks he is the only

one supporting socially acceptable values.”

Something like Matza's shared

EL0gd) L

misunderstandings exists.

But this is precisely what Sykes means by soli-

darity.

Glaser deduces this proposition from evidence which he takes to show

that “prisoners are more oriented to achieve isolation than to achieve soli-

darity.”

| have not time to deal with the low validity and reliability of his

evidence, but | would like to point out that if it indicates anything it is not

a lack of solidarity, but a lack of prisonisation.

That is to say, lack of com-

mitment to the values rather than lack of conformity to them.

Sykes' hypothesis of solidarity stressed the fluctuation between ““mutual

collective support”, and ““every man for himself”’, as polar extremes.

However

near a system may come to the latter extreme this does not imply that group

normative sanctions are less coercive.

They may be more so.

This coerci-

veness of norms is what Sykes means by solidarity.

He does not mean that

inmates are committed to the norms, but only that it is expedient to conform

to them if one is to ameliorate the ordeal of imprisonment.

The need to retain te axiom of prisonisation while undermining the hypo-

thesis of solidarity lies in the presumption that inmates must identify with one

set of values or another.

It is assumed by Glaser that if they only identify

with inmate values through pluralistic ignorance, then a treatment oriented

regime will enable them to do what they really want to do and “support

socially acceptable values.”

But the only thing that Glaser's evidence, such

as it is, has really demonstrated is that inmates are not *“prisonised.”

There is no evidence whatever that they therefore really want to accept staff

values.

They temporarily onform to the norms of the inmate culture because

not to do so would be unwise.

That is solidarity.

Glaser himself says: “the fact that inmates more often report anti-cri-

minal interests... is just trying to present themselves favourably.”

If true,

this is evidence that inmates also pay lip service to pro-social norms when

they feel it to be necessary.

One might formulate a more general propo-

sition than the one about pluralistic ignorance in terms of pluralistic favou-

People in prison express overt conformity to whatever

rable self-projection.

values it would be unwise to ignore in order to achieve personal survival

It must be born

in mind that

with the minimum of extra unpleasantness.

inmate norms have no necessary connection with outside criminality, they are

an adaptation to imprisonment.

(There is clearly a contingent connection).

To summarise: Glaser commits an extraordinary logical solecism by assu-

ming that lack of deep commitment to the norms of inmate society necessa-

rily implies commitment to staff values.

The aetiology of his error lies in

his lack of understanding of what is meant by solidarity.

It does not mean

positive commitment, but rather the necessity of conformity to coercive norms

in order to remain relatively unscathed by the penal experience.

Glaser’s objective is to imply that breaking down the negative inmate

value system by a therapeutic approach means that inmates will identify with

pro-social values.

But this is baseless utopian optimism of the most romantic

kind. To change the negative system, as is admittedly done under therapeutic

regimes, is simlpy to permit the formation of a new and more congenital

form of inmate solidarity.

Prisonisation will be no more and no less than

it was before.

Glaser also posits a U curve.

(The U curve indicates less involvement

in the inmate subculture at the beginning and at the end of sentence), and

he refers to similar findings by Wheeler which he says indicates that “‘the

prisoner’s reference group influences his behaviour on relase, the reference

groups of released prisoners do not correspond to their inmate reference

group.”

Ignoring for the moment that this response could be created by

inmate anxiety about staff assessment of them, if it were a valid finding it

could be used to support the hypothesis that inmate acculturation to prison

social systems, both staff and inmate, is largely secondary and superficial.

All data which throws doubt on prisonisation can be seen to throw doubt also

on rehabilitation under treatment regimes, for it may equally be assumed that

outside allegiance remains firm in a treatment setting.

| have mentioned the social systems of the inmates and of the staff

and must go on to posit a model in which the type of interaction between

these results entirely from the initiative of the staff.

It would be more accurate

therefore to refer to staff and inmate systems as subsystems of a unitary

society in which power is entirely in the hands of the staff. According to

staff attitudes so will

inmates react.

If staff norms enjoin keeping oneself

to oneself, then that will be done.

But in either case it will be making the

best of a bad job, there will be no primary commitment to the standards

of behaviour temporarily adopted.

This is because no inmate would volun-

tarily place himself in prison, and no inmate admits the legitimate authority

of the staff, to do so would be to collude in the destruction of his own integrity.

Irwin and Cressey suggest that a prison inmate may deal with the con-

.

flict

between staff and inmate cultures by

:

1

Repudiation of Institutional Goals.

or

Repudiation of the Inmate System.

or

Conformity to both.

They consider total withdrawal rare.

They go on to suggest that for

utilitarian reasons there will be a superficial adjustment to both systems.

But

they make the totally unwarranted assumption that this implies outward con-

formity with one, and identification with the other.

Why no temporary con-

formity to both ? Again we see the bias towards the belief that prisoners must

be affected somehow by the penal experience.

Garrity in a study to ascertain the effects of both prisonisation and

anomie in prison, (an unusual undertaking) comes up with the very interesting

results that neither hypothesis is born out by his data on relation of length

of imprisonment to parole violation.

He indicates that his results imply that an inmate need not be committed

to the inmate culture.

There can be compliant behaviour, role playing in

a loosely organised secondary structure, with no necessary deep personal

significance for the individual.

He points out that social psychology suggests

that experiences are more likely to be personally significant when relating

to primary interpersonal relationships.

He goes on to say: “the predictions on

post release behaviour must take into account membership group and potential

reference group.”

But even Garrity is not proof against the widespread axiomatic assump-

tion of prisonisation.

He says that prisonisation can vary from “simply lear-

ning compliant role behaviour, to internalisation and changed self-concep

2

For the latter assertion there is no evidence.

Further if compliant behaviour

occurs with other inmates why not with staff ?

The picture we now have of the inmate social system is very like that

of Sykes.

It is peculiar to prison, and deals with the peculiar problems of

being in prison, but it is only temporary and is only adopted to deal with

the pains of imprisonment.

Its most important function is to react to the cus-

todial regime in the most effectively anaesthetic way without requiring any

personal commitment from its members.

These will view prison as nothing

but a temporary unpleasant interlude, certainly not something to be incorpo-

rated centrally into their Weltanschaung.

It also seems clear that failing

the unlikely event of voluntary submission to one of the prison value systems,

primary attachment will remain with outside reference groups, as Garrity

and Wheeler have implied.

A little self-analysis will suggest this as the most

plausible view.

Prison is an unpleasant and degrading experience, however

“therapeutic” the regime, it will be an unusual person who becomes deeply

identified with anything that goes on there.

The evidence for lack of commitment by the majority of inmates to

either staff or inmate social system is considerable.

And, as we have seen

it is an assumption that needs to be proved that lack of commitment to inmate

values leaves only the alternative of commitment to staff values.

It is clearly

not only possible but likely that an individual paced in an artificial and un-

welcome prison society will do his best to insulate himself from anything that

goes on there.

Those who assume, like Glaser and Wheeler, that because

involvement with the inmate system is not deep and personal, inmates are

available for and open to staff influence, are greatly over-simplifying the

problem.

They have confused lack of solidarity with lack of prisonisation,

solidarity remains.

Certainly there is wide inmate co-operation with staff

in treatment oriented regimes, but this does not mean that inmates have taken

staff and their values as a reference group.

No more is the inmate group

necessarily their reference group in a traditional regime just because they

Within

conform to its pressures, and use it to alleviate their deprivations.

a security prison it is the only system they have.

So we are not entitled to assume that inmates co-operate with a thera-

peutic regime because they want treatment and identify with staff values.

We

gt =

have rather to ask how inmates are able to adapt to a treatment regime by

developing a more congenial and less taxing social system ? What indepen-

dent variables in a treatment oriented institution permit this more relaxed and

more co-operative subculture, which is also more pleasant for its members ?

Cressey suggests that treatment helps to ensure security and is in any

event nullified because society sees captives, and captives see themselves,

as being sent to prison for punishment.

(I shall come back to this point).

Treatment will assist in the goals of security and order because it is a

privilege to be sent to a treatment institution, only a fool by prison stan-

dards, would jeopardise this privilege by misbehaviour.

Street, Vinter and Perrow come up with four hypotheses at the end of

their study which also indicate the source of genesis of the new less rigid

subculture.

They conclude that these hypotheses are supported by the data.

They are :

1.

That inmates will have more positive perspectives in treatment institutions.

2

They will try to change their own attitudes as against the overt confor-

mity of discipline establishments.

They will have more positive perspectives on self.

These will be true despite background variables.

Their explanation of this change is that, “the treatment organisation

places greater emphasis on incentives, objectives, and experiences desired by

the inmates, there is therefore less stress on surveillance, control and confor-

mity.”

This is precisely the point; because the staff have different expectations

and prescriptions the inmate system responds differently.

In order to obtain their parole they have to be co-operative with staff,

so they are.

They state frequently that they are really trying to change,

instead of just keeping their cells clean.

They tell the staff about their pro-

blems at home.

If they did not do this they would be fools, they would be

making life more difficult for themselves.

The inmate system not only permits

this co-operation but actively encourages it.

And note hypothesis 4, even

the most hardened criminals with strings of convictions conform to these new

norms.

Persuasive evidence that this is a temporary response rather than one

based on primary allegiance.

In sum-

Even Street, Vinter and Perrow are forced to remain sceptical.

marising their research, they say : ““None of the Institutions was truly success-

ful in producing changes appropriate to the lives the inmates would lead on

the outside.”

They suggest that treatment institutions have positive conse-

quence in that personal and social controls improve along with skills in problem

solving and self understanding, but they query the relevance and utility of this

to the future life situation.

They also suggest that what is learnt needs strong

reinforcing after release.

| would take a less optimistic view, and suggest

that the inmate social system may work against penal experience having any-

Gl SR D

thing more than a superficial and temporary impact on the individual, that

what Street, Vinter and Perrow describe as changes are merely expedient

and temporary adaptations.

Grusky, Vinter and Janowitz have argued that a positive and co-operative

type of staff-inmate relationship is a pre-requisite for and consequence of

treatment goals.

Such a relationship involves, (1) accepting attitudes by

staff, (2) the replacement of penal control by informal control, (3) the reduc-

tion for deprivations.

These be it noted would all have been staff corruption

under a traditional regime, and a denial of impersonal fairness.

Berk distinguishes between benign, partial, and lock institutions, benign

being at the treatment end of the continuum and lock at the custody end,

his research apparently indicated that 63 %, of inmates at Benign were posi-

tively oriented, 48 %, at Partial, and only 39 %, at Lock.

The most interes-

ting thing about these figures is the way they match up to what one would

expect intuitively having experienced the ambience of these different types of

institution.

I would go further and say they match up with what the staff

at the different types of institution would expect.

They are an accurate reflec-

tion of the overt social interaction patterns between staff and inmates in each

setting.

A member of staff at Lock would probably feel rather worried if a

large proportion of inmates started being positive towards him, he would be

convinced they were trying to

con

him.

He would go along with them

But sooner or

to the extent that he was “corrupted” in the Sykes sense.

later he would come down hard on them and tell them not to be so cheeky

or familiar.

By contrast a member of staff in a treatment institution, no

longer feeling comfortable in measuring his success in terms of custody, would

measure it in terms of amount of positive, familiar’ response from inmates.

Street again emphasises that, in a treatment setting, inmates have more

positive norms and perspectives, and that inmate leaders, unlike Clemmer’s

leaders are more positive than other inmates.

Berk finds the same to be true

of Benign leaders.

But then, as Homans would have it, leaders, may be

expected to most closely reflect the central norms of their social group, and we

already know that inmate groups (not necessarily individuals) are more positive

in a treatment setting.

It is worth noting here too, the different picture that

might be presented by participant observation.

Polsky shows that the tough

leader in Cottage six effectively segregates his social practice in the cottage

and in the institution.

In matching for background variables such as criminal sophistication

Berk discovers that these are not correlated with negativeness or positiveness

But this is in

itself

of response, which depends on the institutional setting.

as in the case of Street, Vinter and Perrow’s 4th hypothesis, far from being

an indication of the success of treatment, rather it indicates that inmate social

attitudes, whether positive or negative, are temporary group phenomena unre-

lated to primary reference orientation.

It indicates an ability to adopt tempo-

rarily that persona which is the most adequate for relatively painless survival

in a penal setting.

Qe

It is not even suggested by Berk or other resarchers that the lack of

an oppositional culture implies increased chances of rehabilitation.

The hope for a long term individual change which usually manages to

percolate through surveys of treatment organisations must be based on an

unestablished assumption that incarceration in a regime with an oppositional

subculture leads to prisonisation.

What evidence there

is,

contradicts this

assumption.

Glaser and Wheeler's 'U’ curve, Garrity's suggestion that extra-

institutional reference groups are important, Irwin and Cressey's similar sug-

gestion that roles assumed in prison are related to outside reference groups.

Certainly it is an assumption that needs a great deal more empirical veri-

fication before positive attitudes while in prison can be taken to predict pro-

social attitudes on release.

If Irwin and Cressey, and Garrity are right about compliant behaviour,

role playing in a loosely organised secondary structure, within an oppositional

inmate culture, then the most economical theory about treatment organisa-

tions given the present state of research and their lack of significant rehabi-

litative success, is that the inmate social system in these is an example of

compliant secondary behaviour.

The major determining stimulus eliciting inmate social response is the

social system of their captors which remains dominant over theirs at whatever

point along the continuum between custody and treatment.

The first function

of the inmate system must be to reach the most effective possible compromise

with the dominant culture.

In the custodial setting staff have negative expec-

tations of inmates so the inmates react negatively and achieve accomodation

with the staff through what Sykes has called corruption.

Co-operation with,

or submission to, an aggressive and punitive staff culture would lead to in-

creasing surrender of personal identity, or submission to attacks on integrity.

But once there has emerged what Mathiesen calls a real change in

organisational goal, (and if it means nothing else this means a real change

in staff attitudes and expectations) the deprivations are reduced, incentives are

increased, capriciousness is redefined as flexibility, and to play along with

this is entirely in the interests of the inmates.

To conclude let me refer back to Cressey’'s remark about imprisonment,

however therapeutic in intent, being sen as punishment by both prisoners

and public.

It has been suggested by Erikson among others that it is the function of

legal processes and penal institutions to label our deviants for us.

To show

us what the devil looks like.

If it is true that society needs its deviants to define the boundaries of

righteousness and to renforce group norms, then clearly it matters litlle whether

The label

the label is attached in a permissive or a punitive establishment.

criminal is very adhesive and once it is affixed may not easily be removed.

Our own research into the institutionalisation of juveniles here in Nigeria

suggests that for various reasons labelling does not take place (the principle

g —

reason is probably that tradition directed persons attribute little legitimacy

to the norms and decisions of bureaucratic, neo-colonial

institutions), and

there is consequently a very low rate of recidivism.

If this is true then audience reaction would seem to be the independent

variable mediating recidivism, along with the reference group of the individual

The type of institutional treatment then becomes as irrelevant at a period spent

in Butlins holiday camp.

What prison, of whatever type regime, does, it to label those with an

excess of definitions favouring criminality, and deter those with an excess of

definitions favouring conformity

BIBLIOGRAPHY

STREET, VINTER and PERROw (1966)

Organization for Treatment

CLEmMER (D.) (1940), The Prison Community.

Sykes (G.-M.) (1958), The Society of Captives.

Marhiesen (T.) (1965), The Defences of the Weak.

Matuiesen (T.) (1966), The Soczology of Prisons: Problems for future Research in Brit.,

Sociology, 17,

Jouson (W.) et al (1962), The Sociology of Punishment and Correction

GLASER (1964), The effectiveness of a prison and parole system

IRwiN and GrEessey (1964), Thieves, Convicts and the Inmate Culture, in Becker (H.-S.)

(ed) The Other Side

225-24

Cressey (D.-R.) (ed) (1961), The Prison: Studies in Institutional Organisation end Change.

Spencer (J.-C.) (1965), Problems in Transition

From Prison to Therapeutic Community in

aLMos (P.) (ed), Sociological

Studies in the British Penal Service

Berk (D.), Organisational Goals and Inmate Treatment.

meson (K -T.) (1964), Notes on the Sociology of Deviance in Beckir (H.) (ed), The Other

-21.

Por_st Cottage Six

SO

Alternatives to prison in East Africa’

by G.H. BOEHRINGER,

Member of the staff of Oxford Penal Research Unit

A. — INTRODUCTION

Although | wish to deal in this paper with possible alternatives to impri-

sonment, | will in effect be dealing with the broader question : toward what

I will discuss alternatives to

kind of penal system ought we to be working ?

prison mainly in the context of a Tanzania building a Socialist Society, but

much of this material is also applicable to the other countries in East Africa,

and perhaps elsewhere.

A fundamental assumption of this discussion is that

the aim of the penal system is to reduce crime, and that an important method

of doing so is to reform criminals who are consigned to it from the judicial

process (1).

It is, of course, official policy of the Tanzania Prison Service that

rehabilitation or reform is the main objective in the treatment of offenders (2).

Before discussing alternatives to a system, it is valuable to set the scene

by describing that system (3).

For the purposes of this paper, | will deal

with “the prison” as a model (4) of penal treatment in its pure, traditional—

i.e. Western capitalist—form.

Imprisonment can be then considered in the

following terms

a form of penal disposition by which offenders, who have

been found guilty of a crime by a court, are taken to a place of custody

which can be described as a prison.

A prison is a highly centralized institution, having a considerable amount

of security measures in force and, normally, having noticeable physical retai-

ning barriers ; there are numerous guards, of high visibility, in relation to the

population ; additionally, there are also a large number of inmates, particu-

larly in relation to area; and there is, also, a high degree of regimentation,

based on a restricted and repetitive daily routine, which deprives the inmate

of certain fundamental liberties including, invariably, freedom of sexual rela-

tions (5).

There are, of course, other characteristics of prisons generally,

but | think this brief description should suffice to indicate the nature of the

institution about which the discussion ought to revolve (6).

At this point, it

should be noted that | shall not deal with preventive detention, which is used

in East Africa with regard to persons who are considered a danger to peace

and good order, i. e. security cases (7).

(In Uganda, preventive detention

applicable to habitual offenders, similar to the system in England and Wales

(*) G. H. BOEHRINGER, Member of the staff of Oxford Penal Research Unit.

SRl =

prior to the Criminal Justice Act, 1967, is in effect (8).

Additionally, Kenya:

utilizes a system of detention camps for minor offenders which also will not

fall within the scope of this paper (9).

What, then, are alternatives to prison ?

In brief, an alternative, for the

purposes of this paper, is any method of treating a person who engages in

deviant behaviour other than sending him through the complete criminal pro-

cess into prison.

Thus our discussion ought to, and will, range over a wider

area than merely that of the physical prison, and will consider (1) the nature

of the deviant behaviour, (2) the nature of the process by which the offender

is treated, and perhaps most important at least for present purposes, (3) the

nature of the sanctions available to the society in dealing with deviancy.

The alternatives, in the sanctions sense of the word, presently available

are fairly numerous. (10)

They provide a wide range of choice to the courts

and include such sanctions as discharges, suspended sentence, probation, fine,

approved school, extra-mural labour, corporal punishment, capital punishment,

and some others as well.

We will wish to consider these, as well as such

European (11) innovations as parole, (12) and such customary sanctions as

restitution, (13) ostracism, (14) and others (15).

Although the main thrust of this paper is toward a consideration within

the East African context of alternatives to the prison as a custodial institution,

it will also be useful to note possible additional sanctioning processes which

have developed or are developing as the result of various post-independence

pressures on the inherited colonial system of justice.

lustrative of such

developments are the changes made, or proposed in Zanzibar, which are in

some ways more radical than any made elsewhere in anglophonic Africa since

the end of the colonial era.

It is helpful to indicate the processes which have

emerged, or

are perhaps

emerging,

in Zanzibar

by dividing them

into

categories :

a)

reform of the judiciary (most sweeping, and now in effect) ;

b)

reform of penal sanctions (only partly in effect;

<)

reform of the penal institutions (not yet in effect as far as | can ftell).

With regard to judicial reform, the first indication occurred in July, 1968,

when the Rt. Hon. Karume (First Vice-President of Tanzania, President of the

Zanzibar Revolutionary Council) announced, ‘““We have given serious thought

to the role of the judiciary in its present form, in our revolution since these

four years and we have come to the conclusion that the system has to change

to conform with the aspirations of the people.”

During the following year,

the Zanzibar anthorities drew up plans to effect the envisaged changes, and it

became clear that the major reforms would involve the composition and juris-

diction of courts (18).

Subsequently, by Decree No. 11 of 1969 (19), the

Revolutionary Council made effective a two-tier system consisting of People's

Courts (replacing the old Magistrates’ Courts) and a High Court (to which the

Acting Chief Justice, Mr. A. Shaidi, A Zanzibari, was seconded from the Tanza-

nia High Court).

Under the Decree, the People’s Courts have full and exclusive

g

jurisdiction over all crimes except murder, attempted murder, and manslaughter,

which are to be tried ni the High Court.

The People's Courts are free to esta-

blish their own rules of evidence and procedure ; Kiswahili is established as

the language of the Courts, and no advocates are allowed to appear, although

In terms of

a person charged may have a friend or relative appear with him.

sanctions, the Revolutionary Council has introduced measures making it an

offence for an unqualified person to remove tonsils from another (punishable

by five years’ imprisonment) and to cause death by so doing is murder (liable

to a penalty of death) (20).

Another decree declares it an offence to lease

without approval any clove lands in Zanzibar, the penalty being imprisonment

for up to two years or a fine of Shs.4000, plus liability to confiscation of all

property (21).

A third decree in effect makes it a crime to make an unmarried

female pregnant, the sanction being imprisonment at hard labour for up to

5 years (the unmarried female must disclose the name of the father, and is

liable to detention until she does; an unmarried girl must be expelled from

school if found to be pregnant) (22).

Mr. Karume also announced that any

leader on the island “found to be leaning towards capitalist ideology or prac-

tising capitalism itself will render himself liable to imprisonment to his or her

natural death,” (23) (but no decree appears to have been issued yet). Finally,

as to penal reform, it was announced by Mr. Karume that “although it was

not possible to totally abolish prisons, an alternative was possible,” and that

“with the exception of people charged with murder and armed robbery,

everyone guilty of crime, including the stealing of one cigarette, would be sent

to a reform institution for five years.”

In the report, it was emphasized that

all persons so sentenced would be taught a trade (24).

And in another report

it is indicated that the institutes would be “State Schools where they will

undergo training in trades such as carpentry, plumber and handicrafts.

After

completing the five year sentence as state students they will be given the

necessary tools of trades and will be posted in centres of production to parti-

In a

cipate in national reconstruction with their fellow compatriots” (25).

later report, it is indicated that the Governmen

f (12

will next year start the

construction of a rehabilitation centre for criminals® (26) but thus far | do not

believe the proposed 5-year rehabilitation scheme has been put into effect.

For an intelligent comment on the proposals, see the editorial “Rehabilitation”,

in The Standard (27), where the contradiction between minimum sentences

and rehabilitation is pointed out, inter alia.

A second development which resulted from pressure on the received system

is the re-emergence, or rediscovery, of the customary system.

(Because of the

lack of research, it is doubtful to what extent the customary system was supplan-

ted by the received system in view of Tanganyika's vast size and the fact that

about 95 %, of the population lived—and now lives—in rural areas, and that

much of this territory is rather inaccessible.) Thus the Tanzania Government has

introduced (for Tanganyika only) Arbitration Tribunals as an additional part

of the judicial structure (28).

Another measure directly related to social

deviance and Tanzania's development progress, is the Ward Development

Committee, introduced in Jaunary 1969 (29).

Under this legislation, local

g

“Ward Development committees” are to be set up (in the rural areas mainly,

| believe) and have been granted power to impose “traditional sanctions”

against persons who fail or refuse to take part in self-help schemes (30), so

designated by the Ward Development Committee (31).

A third development, or perhaps a “continuing customary practice’” may

be a more accurate description, is the tendency to take things into one's own

hands, and this ranges from the physical sanctioning of thieves, and motor-car

drivers who appear to have caused injury while driving, to public denunciations

of various kinds of social deviants.

President Nyerere set an example for this

type of sanction when he directed that Mr. Hanga (former cabinet minister)

be brought to the National Stadium, and denounced him before a large

audience (32).

(Admittedly, Hanga was undergoing the sanction of preventive

detention at the time ; nevertheless, that does not negate the example).

A fourth development is the emergence of parallel systems of sanctioning

in the context of socialist economic (33), cultural (34), and political (35)

development.

Finally, it is pertinent to consider briefly whether the principal system of

administering criminal justice, i.e. through police, courts, and prisons, is appro-

priate (36), particularly in relation to certain kinds of behaviour which are

presently within the scope of the system (37), and certain types of offenders

who are also within its scope at this point in time (38); conversely, it is also

relevant to consider those kinds of behaviour not presently within the scope

which might properly be included (39).

Why should one be concerned with alternatives to prison ?

Theoretical,

The theoretical

humanitarian, and pragmatic

reasons present themselves.

argument (40) is simply put—that you do not train a man for freedom in

captivity ; or, to put it in less succinct fashion, that as the individual's eventual

adjustment must be to the family unit, the neighbourhood, the job, and the

community (41), this cannot be done in a place of penal isolation (42).

In

humanitarian terms, if one can find more humane methods of accomplishing

the_same results, then one would wish to do away with imprisonment and its

attendant deprivations of various kinds (43).

Finally, the pragmatic argument

is one which may be put in terms of cost-effectiveness : the question must be

asked—particularly in countries under-developed economically—are we get-

ting our money's worth ? (44)

This cannot be answered very easily, and

frankly | don't think it is possible for a criminologist to give the answer from

within his discipline alone.

A reliable answer to the question awaits a detai-

led economic survey which, when put into proper perspective by a crimino-

logist, would provide some idea of the value of the use of imprisonment in

terms of cost-benefit analysis.

Such a survey would minimally require (1) a

thorough economic analysis of the net cost of some other disposition of the

offender (both difficult to measure and the latter particularly) ; (2) measured

against comparative probable “success-failure” ratios for each which, in turn,

would have to be based on an analysis of the additional cost of police, courts

and so on in the case of “failures’, and some estimate of the benefit to the

By

nation of the “‘successes”.

Obviously, there is no telling now just where the

balance lies in terms of cost, but it would be surprising if East African coun-

tries—even Tanzania with its very successful self-reliance policy (45)—were

exceptions to the apparent general rule (at least in Western countries) that

imprisonment is a very expensive method of handling offenders in comparison

From what one reads and hears about

with other forms of treatment (46).

prisons in countries such as the U.S.S.R. and China, it appears that the cost

is low because they are, to a considerable extent, highly productive indus-

trial units (47).

Nevertheless, despite the low cost of prisons, they appear

to rely on alternatives to prison, at least to some degree (48).

One British criminologist, Mr. J.E. Hall-Williams, has stated, ““We seem

to be committed in some of our over-developed western societies to detecting,

prosecuting, convicting, and, worst or all, detaining in over-crowded custodial

institutions more and more individuals each year” (49).

This, of course, des-

cribes the background of the Criminal Justice Act, 1967, whereby the British

attempted to solve some of their penological problems by introducing measures

designed to depopulate the prison system (50).

It is, of course, true that the

prisons of East Africa are over-crowded and that alternatives to imprisonment

have been looked to as relief agencies in recent years. (51)

The call has

gone out, in fact, from several Prison Commissioners, for additional research

into this area, and for recommendations which would help alleviate the situa-

tion. (52)

To quote Mr. Hall Williams again, “what is needed... is a com-

plete review of the purposes of imprisonment and re-assessment of our prio-

rities.” (53)

However, it should be a useful caution to budding criminolo-

gists, as well as to other “experts”, that “researchers must be constantly on

their guard against being placed in a position where they are expected to

deliver more than is in their power.” (54)

It

is without doubt that one

of the most difficult tasks ahead of East African criminologist and policy-

makers, is the evaluation of different penal methods (55); nevertheless, it is

imperative that the attempt be made.

In his very useful article on “Illusions

of Training and Treatment”, Hall Williams, after pointing out the apparently

rather unsatisfactory result achieved by the British, stated : “In the light of

these figures, of sociologists estimates of the contradictory forces at work

within the prison community, it seems to me that we could well embark on

a fundamental re-assessment of our methods of custodial training...

The chal-

lenge to penal reform today is not quite the same as that to our predecessors.

They had to fight repression and retribution and introduce more hopeful me-

thods under the banner of treatment and training.

As | see it, we have an

equally difficult task, that is, to unmask the glossy circumlocutions and com-

placent reports and reveal the truth about our present failures and discon-

tents.”” (56).

A search for alternatives to imprisonment directs our attention to the

evolution of penal sanctions.

It should be kept in mind that “one cannot

properly discuss penology without constant references to the political, social,

and economic circumstances of the society concerned” (57) ; whether one is

concerned with Africa (58) or the more industrialized countries (59), one

— 9

IS

J

—

discovers not only a wide variety of sanctions, but also a pattern of deve-

lopment in penal sanctions which parallels development in the political, social,

and economic sectors, (60)

However, without going further at this point, one

can say that particularly in the last 75 years, the tendency throughout most

of the world has been toward broadening the range of available penal sanc-

tions (61).

To conclude this introduction, let me remind the reader that any consi-

deration of the penal system, particularly one involving possibilities for reform,

must be based on an understanding of the inter-relatedness of the different

aspects of the entire criminal justice machinery, about which | have written

elsewhere (62).

And if such consideration would range beyond the criminal

justice system then a like caveat must be inserted concerning the civil justice

system, and any other process—ijudicial or political— which might be invo-

ked (63).

B. — ALTERNATIVES TO PRISON :

WHY THE SEARCH FOR ALTERNATIVES ?

| have mentioned three considerations from which the search for alter-

natives may arise—theoretical, humanitarian, and pragmatic or economic.

In terms of theory, it is said that the prison is, by its nature, not an ins-

titution in which it is possible to rehabilitate most, if not all, offenders ; indeed,

some writers have taken a very strong position, contending that reform in

prison is not possible (64).

A brief but useful general discussion of the fun-

damental contradictions involved in sending offenders to prison is given by

Fitzgerald : “To become a model prisoner is not necessarily even a step to

becoming a model citizen.

Self respect, confidence and self-reliance are not

developed by merely

learning to obey the

rules

inside an

institutions.”

And again, “Now since the idea prevailing today is that prison should

be used chiefly as a training to reform and rehabilitate the offender, it is

a curious commentary on the type of training employed that so much time

and energy have to be devoted to assisting the ex-prisoner to get over the

effects of his training.” (65)

It is at this time that | would like to introduce

references to the work of several criminologists who have attempted to probe

more deeply into the reasons why the prison is not capable of doing the

job which many nations have relied upon it to do, that is, to reform the

offender.

Within the last 30 years, there have been a number of studies of the

prison as a social institution.

The first major work, as well as one of the

most important, was Clemmer's The Prison Community, (66) which put into

proper perspective the prison as an institution for treatment.

Clemmer’s disco-

veries established that the hope that the prisoner would view his cell as “the

beautiful gate of the Temple leading to a happy life and by a peaceful end,

to Heaven” (67) was a forlorn one indeed.

What Clemmer did, and others

A0 G

have done since (68), was to show that the prison could not be viewed

simply in terms of its physical and formal aspects, with its prescribed hierarchy

and neat organizational chart.

The prison came to be seen as a special com-

munity, having its own social system, and that this system was to a great

extent informal in that it existed outside the plans, charts, regulations of the

formal system (69).

When hundreds of humans are locked up en masse, wor-

king, eating, sleeping, and, in general, cohabiting, an informal social system

arises, more or less parallel to the formal system, in which men interact in

meeting the common problems imposed by this special kind of environment.

That this occurs is hardly surprising, given the nature of the composition of

this social group, described by two American criminologists as “custodial and

professional employees, habitual petty thieves, one-time offenders, gangsters,

professional racketeers, psychotics, prepsychotics, neurotics and psychopaths,

all living under extreme conditions of physical and psychological compression.”

(70) (It should be noted, for it is important, that reference is made to the

prison staff, and much attention in recent years has been paid to them by

criminologists, for instance Sykes (71) and Morris (72), in working out their

theories.)

One of Clemmer's important contributions was the discovery that within

the prison was an intriguing community which differed not only from that

existing outside but also from that which had been thought by penal autho-

rities to exist inside ; in addition, he attempted to assess the significance of this

sociological phenomenon for penal policy (73).

Clemmer’s basic concept is

“prisonization”.

By this, he describes the process by which an “‘offender”

becomes a ““prisoner”.

He found that a unique community exists in prison,

having its own culture, its own norms and values.

It is by the process of

absorption into this culture that an offender becomes, in time, a prisoner—

a member of the “prison community”.

As Mathiesen points out (74), Clemmer’s

prisonization concept is somewhat analogous to Sutherland’s theory of diffe-

rential association.

In other words, what some would call the “‘contamina-

tion” which takes place in prisons (what Clemmer would call “prisonization”),

is the result of association with criminals in the prison, just as is “contamination”

outside the prison.

The upshot of this view is that the prison as an institution is not a very

favourable place for reform because, by its nature, it creates a culture which

is negative, or counter-reformatory since it is essentially opposed to the gene-

ral societal culture.

The inmate is in fact introduced to a very strong negative

influence, perhaps stronger than that to which he might be subjected on the

outside.

He is influenced primarily by the inmate culture which is deviant,

based on a criminalistic ideology, and he is thus largely immunised from

pro-society views, norms, and values (75).

It is interesting to note that Mathiesen found that this contamination

theory was believed to be valid by Norwegian prisoners and staff.

| have

found this to be accepted by persons in correction work in several countries,

including Tanzania (76).

It would seem that there is much to be said

in

favour of this view, but that like other criminology theories especially “break-

e

[

through” theories like this, it may be necessary to modify it in order to make

it valid and useful for particular circumstances.

Thus one would want to

consider what factors are important in determining the exact nature of the

prison culture ; one can, | think, assumed that different prisons, even within the

same country, might have significantly different responses (aggressive, passive)

to a different regimen (77).

There is a need to consider also the differential

extent or degree of “‘prisonization’” which occurs, and what factors contribute

most strongly to this : length of sentence ; extent and nature of contacts with

the outside community ; extent and nature of social relations inside the prison

community ; type and size of prison; nature of activities within the prison ;

and probably a number of other factors as well.

Although Clemmer's work hypothesizes a fairly direct negative rela-

tionship between degrees of prisonization (involvement in the prison culture)

and adjustment after release, some writers have criticised this as being too

mechanistic an approach.

Thus, Wheeler and Glaser have found that there

appears to be, in general, a progression over time toward complete prisoni-

zation, but that for a significant number of cases, this tends to slow down

at a certain point, toward the end of the inmate's term, at which time the

prisoner tends to begin to reorientate himself toward conventional norms of

the society outside (78).

Continuing where Clemmer left off, other writers, particularly Sykes (79),

:

.

came to ask some important questions

assuming Clemmer's findings to be

accurate, what are the origins of this informal social structure within the prison,

and how does the system actually function ?

In Society of Captives (1958) and other writings (80), Sykes has attempted

a functional analysis of the system to which Clemmer had called attention.

First, why does the inmate culture, to the extent that it does so, arise ?

According to Sykes, ““A central problem confronting the prisoners of this

compressed community is prolonged deprivation.

The loss of personal liberty,

although fundamental to all the rest, is but one of the deprivations experienced

by the prisoner ; and many of the relation-ships among inmates are best viewed

as the result of attempts to overcome or mitigate the frustations imposed by

Mathiesen has called this a

society as the punishment for crime” (81).

“circular theory” (82), although it can be thought of in linear terms.

Thus

the “pains of deprivation” are felt in the prison, and in response to the pains,

the inmate social system creates a culture in which the pains are reduced.

When the pains are sufficiently reduced, a condition of stability, of equilibrium,

is created.

When some new factor is introduced which increases the pains

(such as a new Governor, or new security measures similar to those recom-

mended by the Mountbatten Report) (83), this stability is likely to be upset,

the system experiences a disruption (prison riots for example) (84), and then

a need to re-establish the stability arises.

Thus the linear development would

look something like this :

Pains (strong) : Culture Arises to Modify - Stability ; Pains (new ; stronger) :

Disruption (riots) ; Pains (new ; stronger) : Culture Modifies - Stability.

SR

How does the inmate culture accomplish this modification of the pains of

deprivation (which are deprivation of liberty, deprivation of goods and services,

deprivation of normal sexual relations, deprivation of autonomy, deprivation of

personal security in relation to other persons—mainly inmates, deprivation of

his status as a member of the larger community) (85) ?

“faced

There are several functional alternatives which inmates can adopt

with severe frustrations, together yet apart, and ill-equipped by previous expe-

rience to live in harmony under compression, the inmates of the prison attempt

to manipulate their captors, coerce and defraud each other, or withdraw into

the apathy of “sweating out their time” (86).

This statement from Sykes

indicates that the response to the prison experience may not be so undifferen-

tiated as earlier writing on this question tended to suggest.

At the same

time, the three types of response cannot be viewed as unrelated, nor as being

consistently applied by the same inmates.

In the sense that inmate response seems to involve manipulation of their

captors, it is essentially based on solidarity.

And this solidarity is to a

considerable extent based on the view that it is “society against the inmates”

or, more specifically, the prison administration (representing society) against

the inmates.

It is a “deviant” culture in that it is a counter-culture which

operates to sustain inmates against the authority structure and thereby main-

tains deviant standards amongst its members.

It is “deviant” in the special

sense that it reduces the effectiveness of attempts at rehabilitation, it regates

a considerable extent, other formal purposes of the prison and rejects the values

propagated by society's surrogate, the prison administration.

Prison culture is not entirely deviant, however.

There are some aspects

of prison culture, at least in Western society, which reflect attitudes very

similar to those on the outside ; (87) e.g. loyalty to one's friends is normally

a value found both inside and outside the prison.

Again, the attitude of in-

mates toward sex offenders, particularly those whose victims are children or

women, is much the same as that held by the community at large.

And here

one ought to refer to the general debate going on amongst criminologists

concerning the extent to which delinquents outside prison have values dissi-

milar

written some of

to non-delinquents.

Sykes

himself,

with Matza,

the more useful material on this in terms of the delinquent deviant response

being “neutralized” by various mental techniques (88), as opposed to the

Cohenite view that the delinquent response is militantly against the culture of

the society (89).

It is also the case that inmate response cannot be properly

described either as that of total solidarity, or the reverse.

There are pressures

toward solidarity as has been indicated, “yet an extensive solidarity among

prisoners appears to be both infrequent and unstable due to a number of

centrifugal forces at work” (90).

How do prisoners “manipulate their captors” ?

Sykes' contribution is

probably most important for the insight he has given us into the social rela-

tions between inmates and the prison staff, especially the prison guard who

“stands as the surrogate of legitimate society, and it is he who must bring

the power of the state to bear against the offender in concrete and detailed

terms... the custodial officer is a pivotal figure in the transfer of policy from

paper to behaviour ; and imprisonment remains a vague abstraction until we

understand the nature of the relationship between the guard and his prisoners™.

(°1)

The common view of the situation inside prison would be, | suppose,

that the staff exercises maximum control at all times over all inmates.

In fact

Sykes has shown us that there is “an uneasy compromise”, and if we begin

to understand “‘this necessary compromise of freedom and restraint within

the prison, we can begin to see the realities of life in prison emerge ; guards

and inmates become involved in a complex pattern of social relationships in

which the formal structure of the penal institution is subject to a number of

disrupting influences ; it is only by understanding the nature and extent of

the departures from the official plan of custodial life that we can understand

the nature of imprisonment (92).

There is, in effect, a subversion of the prison officers’ authority, and |

wish to mention in briet, the methods employed and the circumstances which

exist in Western prisons which tend to lead toward this subversion.

(Note

that this applies specifically to the lower custodial ranks who are faced with

constant pressures from above—prison officials—and from below—inmates.

Whether the pressures are similar in African institutions is not entirely clear

from research thus far available.) (93)

A prison guard is in constant and close contact with the inmates, and is

particularly susceptible to certain pressures which can be brought to bear.

He is in the “front line”” without a buffer; he cannot physically separate

himself from his charges and he has little “social distance” to separate him

from them.

The chances are good that they are of equal social status, and

may in fact have a contempt for him for being such a fool as to work hard,

in a prison,

with

little reward.

Conversely,

the guard may have

some

admiration—probably some envy—for those prisoners who appear to live

an exciting life.

| found this to be the case amongst prison officers with whom

| became friendly while a series of lectures in a British prison.

From their

conversations, it became clear that they felt something like envy concerning

the sort of lives a few of the prisoners could afford to lead.

| was regaled

with stories about the wine, women, holidays, and cars which some of the

The inmates

inmates could, and plainly did enjoy after doing their “bird”.

were well aware of the attitude held by some prison officers, and | was told

by the latter that the inmates often teased and chided them for being such

“mugs” as to “work for a living”.

| don't know if there is a similar pattern

in East African prisons, and though | doubt if it exists to any extent in

Tanzania—because the prison officer is really part or a small minority that

earns a reasonable wage, and most property crimes involve very small amounts

—it is very likely that as— and if—crime begins to “pay” more, then such

inmate-warder relations will develop.

On the other hand, the guard may have more in common with some of

his charges than with his superiors, and to the extent that the guard is subject

— 100 —

to discipline and general bureaucratic interference, he has an ally, or at least

a sympathiser, in the inmate.

Further, the guard has to rely on inmates to

a considerable extent.

If he is frequently forced to use harsh treatment in

order to get his way, he will probably get into trouble with his superiors.

On the other hand, if he has to call for help time after time, he will be

considered incompetent.

Thus it is that the inmate, in exchange for some

small favours, will willingly comply with the guard’s orders.

The guard then

appears to be a good officer—but he has given away some of his authority

will have to continue to do so, and will be subject to blackmail if he tries

to re-establish his authority by holding the inmates strictly to the rules.

The

guard must also consider the possibility of physical harm to himself, or perso-

nal rejection, if he enforces the rules strictly.

Both of these possibilities require

considerable moral courage if the guard is to be “straight”.

It is also possible that the guard, through laziness, lack of knowledge,

adherence to precedent, or some other reason, will allow inmates to do some

of the minor jobs he should do.

In the event, he may find that a good deal

of his authority has been eroded, that it has in fact been acquired by an

inmate who now exercises some power over him, and that it is difficult, even

should he wish so to do, to reassert his authority which “like a woman's

virtue, once lost is hard to regain” (94).

Syke's view of the corruptibility of guards (and this is mainly moral

corruption, not economic) is supplemented by his view that there is litile in

the way of punishment and reward that can be used by prison staff to control

the inmates, and that the main reward a guard can give is to overlook infrac-

tions, while there is little in punishment he can do to men being punished

so much already.

It would seem that Sykes stresses this too much, that in

fact a prison system does have, or can have, a considerable range of privi-

leges which can be withdrawn as punishment, as well as certain punishments

short of physical coercion.

Nevertheless, | think Sykes’ main point to be

well taken—that there is, to a considerable extent, an underlying inmate soli-

darity which tends to negate the efforts of the staff, and that the use of rewards

Indeed, the use

and punishments is not effective to break this down (95).

of punishments would possibly be counter-productive in the sense of rein-

forcing inmate solidarity.

Lastly, | would like to consider the important work of Mathiesen (96).

He studied a medium-security, treatment-oriented institution in Norway, and

some of his observations made him question the validity of Clemmer's view

of the prison community, particularly, and of Sykes’ work as it related to

“solidarity”.

Mathiensen found that the same “pains of imprisonment” exis-

ted, but that these were reduced by the inmates using a functional alterna-

tive to Sykes’' inmate solidarity ; Mathiesen found the latter lacking in the

Norwegian prison, and also noted the absence of the “prisonization” process.

He discovered deviant norms, but they were not effectively institutionalized,

and that to a considerable extent, there was a general consensus on norms

acceptable to staff and inmates.

— 101 —

He also found a tendency for the individual inmate to stand aside, in

an attitude of “censoriousness”, pointing the finger of criticism at the staff,

reminding them of their deviancy from the accepted norms (97).

A recurring

manifestation of censoriousness is complaining, which seems to be a common

phenomenon in institutions (98), even universities.

Mathiesen stressed rewards

and punishment within the system as important factors in the rise of individual

censoriousness, because they tend to break down solidarity, and also because

they lead to the conditions necessary for finger-pointing—apparent or actual

—injustice, corruption, and favouritism.

It is possible that the difference between the views of Clemmer and Sykes,

and that of Mathiesen can be explained by the difference in the general cul-

tures of Norway and America—and, therefore, the nature of the inmate raw

material—as well as the perhaps more important factor of differences bet-

ween the institutions examined : Mathiesen studied a medium security, mode-

rate size, treatment-oriented institution, whereas Sykes and Clemmer studied

It should

large maximum-security, less treatment-oriented prisons in the U.S.A.

be noted that in attempting to explain the different findings of Clemmer and

Sykes on the one hand and Mathiesen on the other, Sykes' later work shows

less emphasis on solidarity, and in Crime and Society, he states that the alter-

native reaction of inmate “‘exploitation rather than cooperation is more likely

to be rule” (99).

We must also not overlook that Mathiesen makes the point

that in penal institutions : a) there is probably solidarity as well as indivi-

dual censoriousness and that different situations will reveal a tendency toward

one or the other (100); and b) that while rewards and punishments may be

considered important, they may not be sufficient to achieve compliance (101).

What is the nature of the prison community in the prisons in East Africa ?

We have little to go on and this is an area where research is necessary.

Tanner has described for us some of the conditions of imprisonment which exist

(102), and certainly the “pains” or deprivations seem very similar.

In fact,

recent statements from Kenya indicate that they will, and that it is felt that

they should be increased (103).

It is clear that the conditions obtaining in Norway, the U.S.A. and the

U.K. are sufficiently different to make it likely that the situation in East African

prisons cannot be said to be the same either in terms of the type of staff,

or the type of offenders, and, in terms of general aftitudes of each (attitudes

which include those toward the other, toward their fellows, and toward autho-

rity).

Nevertheless, it would be surprising if there were not considerable

It is the case that

similarities based on the fundamental fact of imprisonment.

| have had some information concerning conditions in an East African penal

institution which would indicate that Clemmer's view of an inmate culture,

with considerable solidarity (Sykes) acting outside the formal institutional

structure, is applicable in this part of the world as well.

— 102 —

C. — ALTERNATIVES TO PRISON :

WITHIN THE PRISON SYSTEM

In terms of the “prison” as | described it in the introduction, there are

suggestions one could offer for making penal institutions centres of treatment,

or rehabilitation centres, rather than prisons.

In other words, the prison

can be so modified that it becomes literally an alternative to prison (104).

Modifications meriting consideration would include conjugal visits, recently

rejected Kenya (105), but used successfully elsewhere (106).

Conditions

in East African prisons indicate that such a modification of the existing regu-

lations would tend to reduce what is probably an increasingly important pro-

blem—homosexuality, with all of its attendant complications in the prison

community (107). Tanner indicates that homosexuality is a problem in East

African prisons for men, and seems to believe that it is likely to become

worse as increasing numbers of younger offenders are incarcerated. Nothing

is known, insofar as | am aware, of the nature and scope of the problem in

female prisons, or within any of the special penal institutions in East Africa,

i.e. Approved Schools, prisons for young offenders, and borstals.

The pro-

blem of homosexuality in British and American penal institutions of all kinds

is seriaous and also comprehensively reported (108).

In any consideration of the present standard prison regime, it would seem

imperative to take a more liberal attitude toward contact with the outside,

consistent with security and available resources (109).

Further, the general

pattern of regimentation of a military style needs to be reconsidered (110).

Finally, I would suggest that the legal rights of inmates vis-&-vis the prison

authorities and the outside community, before and after release, must be

reconsidered, and that inmates and discharged prisoners be given a role in

establishing and maintaining those rights (111).

The subject of reforming and using prisons in the future is an important

one, and radical changes are called for; | have only hinted at some of the

areas wherein new developments would be indicated (112).

Even assuming

that the prison can be an agency for reform, there would be almost insu-

perable difficulties in using it as such in practice at the present time.

Cer-

tainly in Tanzania, and | believe in most countries, prisons are over-crowded,

old or unfit for modern purposes, without a sufficient number of properly trai-

ned staff and inhibited by a lack of expertise which might allow for more

effective classification and segregation of certain offenders (113). There are

also problems concerning the methods of implementing policy-easing tensions

between self-reliance and production on the one hand, and reform on the

other (114).

Another difficulty is the contradiction between judicial policy,

which often appears fundamentally deterrent, and penal policy of reform

(115). Further limitations on the effectiveness of the reform policy are the

general absence of integration of the prison system into the national economy

(116) and the general objective conditions—e.g. scarcity of employment for

which urban offenders especially can be usefuly prepared (117). The entire

— 103 —

problem of “after-care” has not been analyzed, perhaps because this form

of treatment has not been widely implemented yet (118).

D. — ALTERNATIVES TO PRISON :

OUTSIDE THE CRIMINAL JUSTICE SYSTEM

| would like to sketch out briefly another area for consideration, the

scope and content of which must be left for a future analysis.

It is clear,

however, that a comprehensive radical reform of the law is needed in East

Africa, and though it is still not in the offing, there is a necessity for giving

thought to the substance of reform.

Some thought has, of course, already been

given to the matter but is to some extent already out of date; furthermore,

what was done represents only an initial attempt to pinpoint some of the

difficulties, contradictions and anomalies left by the departing colonialists

who had established the common law, with minor modifications, in East Africa

(119).

There are now several books on criminal law (120) and criminal pro-

cedure (121) in East Africa, but only one seriously attempts to analyze the

problems raised by continuing use of the received law ip the changed circums-

tances of post-independence Africa (122).

It seems to me that the question of the behaviour which is to be made,

or is to remain, criminal deserves priority (123).

Although much time, energy

and discussion has gone into substantive reform on the criminal side (124)

(Procedural reform is, of course, also called for) (125)

It is imperative that

a body be set up containing lawyers, social scientists, jurists, representatives

from government, etc., to begin to consider the substance of our penal law (126).

Obvious questions come to mind concerning suicide, the use of alcohol and

drugs, various forms of deviant sexual behaviour, and there are many more

kinds of behaviour which must be weighed in the balance and assigned to the

criminal process, or not, depending on current conditions and the needs of the

country involved (127).

The matter of rationalizing penalties available is

of course a necessary part of this process (128) and, as to the methodology

of reform, there are commentaries available from several academics (129).

Complementing the above should be a study which would seek to

determine the best way of processing certain forms of deviant behaviour (130).

Some forms of deviant behaviour might be labelled criminal, and yet it might

be considered more beneficial for various reasons (cost, avoidance of stigma, etc.)

to process them through an

institution distinct from the normal

criminal

court (131).

Thus it might be that a separate Traffic Court (132) should be

Perhaps

set up, with substantially different procedural rules and penalties (133).

customary (134) or political offences might come into this category as well.

Political offences are not normally a subject of criminological research, and the

literature on the subject is rather sparse, particularly in English—probably due

to the lack ‘of recognition of the concept (135).

Nevertheless, one feels

compelled to argue for at least some theoretical discussion of the scope and

function of the concept for Africa today (136) and in the future, and also with

— 104 —

regard to the appropriate mechanism for dealing with political offenders before,

during, and after the determination of their status.

It is, | feel, essential that

serious consideration be given to political crime not only because it is sometimes

difficult to make the distinction between political and non-political offences,

but also because it is important to realize that the distinction should be made

where possible (137).

The manner in which a government approaches the

problem, both in its substantive law and procedure, has effects not simply and

directly on its security, but in a complex and indirect way upon the citizenry

who will be, consciously and unconsciously, judging its government on its

performance in this sphere as in others.

It must be conceded, of course, that

this is a sensitive area wherever it is studied, and therefore, we must not expect

to be able to base our theorizing, at least initially, on empirical research to

any great degree.

We must not forget that it is also possible that some forms of deviant beha-

viour will not be labelled ““crimina

l'”

, and yet it would be felt justifiable to inter-

vene and, by some process, subject the deviant to treatment (svicide attempts are

obvious choices for this category ; perhaps the use of drugs and alcohol might

come within it as well) (138).

The role of the party in Tanzania would seem

to merit consideration here ; extensive effort has gone into the attempt to

encourage party leaders and youth members to take an active role in “preven-

ting, detecting, and catching criminals”, as described by the Director of

C.LD. (139)

Whether exhortation will be followed by any programme for

directly involving Tanu, or Tanu Youth League, in the struggle against crime

is another matter.

There are obvious dangers, of course, in encouraging

members of a political organization to take measures against social deviants,

but as long as these dangers are recognized and amply guarded against, one

would be in favour of such experiments with social forces, particularly where

alternatives of the more traditional Western variety have proved or are pro-

An

ving ineffective because of lack of personnel and other resources (140).

analysis of Tanzania's unique experiment, “Operation Vijana”, (141) will be

of great value in estimating the possibility of using such procedures and orga-

nizations to fill a larger role in social control.

The Tanzanian government is clearly concerned to enlist all possible social

institutions in the struggle against social deviance (including but not limited

to crime).

President Nyerere has called upon Tanu to help the people “abandon

old habits and adopt new ideas” (142).

At about the same time a high

Tanu official called upon the Elders’ Council of Tanu “to preserve the coun-

try's dignity, assist the functions of the Judiciary and restore the culture which

was being wiped out by colonial influences” (143); it was also reported that

the speaker blamed the elders for the increase in crimes among the youth

of the country by their failure to play a strong and active role in the life

of the new country. Such exhortations must be seen in the context of the post-

colonial period, including Tanzania’s determination to establish a neutral, socia-

list stance (144), and to emphasize its indigenous culture.

Further, they must

be seen in light of cultural patterns which include the use of private sanctions

to deter and punish social deviants (145).

Finally, the government is han-

— 105 —

To

dicapped by a lack of police, equipment, and resources generally (146).

offset these deficiencies, it has increased the number of special constables who

will be given training so that they may carry out part-time volunteer police

work (147), it is giving special training in crime detection to T.Y.L. members

(148), and the Police have undertaken a campaign for more individual vigi-

lance and cooperations from the general public and political cadres (149)

It also appears likely that quasi-private police forces will be allowed under

certain conditions with limited jurisdiction, in order to deal particularly with

special problems which have been hindering economic development (150).

Finally, some attention must be given to the type of offender in terms

of age, sex, and other circumstances.

Are there any “candidates for exemp-

tion” from the normal process of the criminal justice system which we have

overlooked ?

(This should not be taken to mean that reform is necessarily

to be only in the direction of exclusion).

There is a tendency in the common

law system (and generally elsewhere, | believe) to exercise considerable dis-

cretion in relation to offences alleged to be committed by the young (151)

(but also, following social defence principles, in relation to young persons in

need of care and/or projection)—but is this approach always justifiable, under

all circumstances ?

In the U.S.A., the recent tendency has been toward apply-

ing normal processes to the young in order to protect them from abuse of

their civil liberties (152).

It would seem possible that in East Africa, where

populations are so heterogeneous that some further consideration of these

matters is callled for (153).

E. — ALTERNATIVES TO PRISON

WITHIN THE CRIMINAL JUSTI(.:E SYSTEM

There are essentially two alternatives one should consider under this

heading : 1) the special custodial institutions and 2) non-custodial alternatives.

1. Special Custodial Institutions

Special custodial institutions include a) those for certain agegroups such

as an Approved School and b) those for special types of offenders such as

Mental Institutions,

%6

open” prisons, prison camps, and other minimum security

institutions.

In Tanzania (154), special custodial institutions exist for juveniles under

age 16 (Approved School at Malindi) ; for young offenders aged 16-19 (Wami) ;

for the mentally ill (there are about 7 now, the main one being at Dodoma) ;

for selected prisoners in an Open Prison (Ubena); in the minimum security

Prison (at Kingolwira) ; and in prison camps at various places in the country.

(There are also special prisons for women and lepers, but these are not

necessarily “special” custodial institutions in the sense | have indicated, i.e.

having a different regime from that of a “prison

”)'

These special custodial

— 106 —

institutions have different functions, although all are based on a desire to

remove the offender—for

whatever

reason—from the environment of the

“prison”.

Thus the fundamental advantages of special custodial institutions ge-

nerally are to be found in the increased opportunity which they afford for

securing reform.

There may also be important advantages in terms of reduced

cost and increased production in the minimum security prisons and like esta-

blishments,

Little can be said of the effectiveness of these institutions in Tanzania,

although it is thought by the authorities that they make a beneficial contribu-

tion to the penal system in terms of reform (155).

The Approved School in

This is a matter of some

particular is reputed to be highly successful (156).

doubt if any scientific analysis is to be the criterion, but on the basis of gene-

ral observation it certainly appears to be a far better alternative than impri-

sonment.

The staff are clearly treatment-oriented ; the atmosphere is far

more relaxed than in a prison, and security is minimal (157).

With regard

to such institutions generally, see the White Paper in which the British Govern-

ment announced plans for considerable modifications to their system of dea-

ling with juvenile offenders (158).

Although there is a good deal of cause for scepticism about the inevi-

tability of high “‘success” rates resulting from special institutions of this type

(one British criminologist has indicated that the Borstal system is a failure,

and this concerning probably the most significant contribution to penal sys-

tems made by that country) (159) ; nevertheless, they do seem to have certain

attributes which prima facie, make them an alternative to prison worth consi-

dering.

These advantages would include smaller size, less regimentation,

better staff-inmate ratio, more opportunity for effective education and training,

more opportunity for community contacts.

Many criminologists believe that there is still a need for rehabilitative

custodial institutions (160), and | have discussed some of the positive aspects

of the use which can be made of the prison, modified, within East-Africa (161).

It would certainly appear to be the case however that the tendency in most

countries is to put into custody for too high a proportion of offenders, thus

greatly reducing the possibility of a beneficial experience while in custody (162).

There are also disadvantages in using those special types of institutions.

The fact that they are significantly different from a “prison” does not change

the fact that they are still a custodial form of treatment and therefore heir to

some, at least, of the disadvantages of treatment not based on social rela-

tionships in the outside community.

It is true that for short periods of

within such a closed community (a mental patient, for instance, may be more

at ease with prisoners having similar problems than with persons on the

outside).

Nevertheless, it would appear to be generally accepted that in the

main it is beneficial to get persons out of the custodial situation as soon as

possible consistent with other penal considerations such as security.

— 107 —

In addition, special institutions have been said to be too artificial in

that a category of offenders has been selected out, and that reform will be

hindered by the establishment of a false community (163).

This is, in a sense,

the reverse of the contamination argument; it is probably partially true, but

there must be a weighing of the advantageous and disadvantageous probabi-

lities, and so far as one can tell, authorities in most countries feel that the

disadvantages flowing from segregation into unbalanced communities are out-

weighed by the advantages in terms of treatment (therapy, etc.), education,

and training (164).

Another aspect of contamination theory is that some

critics of the segregation policy argue that the danger of contamination is

increased by throwing together offenders of similar tendencies or ages (165).

It could be argued, particularly in relation to institutions for younger offen-

ders, that this kind of segregation provides an opportunity for exchange of

information, ideas, and techniques amongst people who are not cut off

from each other by age and, perhaps, status (in the criminal hierarchy) ; thus, it

would be argued that a young offender is far more likely to be impressed

and subject to contamination by successful inmates of approximately his own

age

This is a possibility which has not, | believe, received much conside-

Since contamination

ration by penologists and others working in this field.

must certainly occur in any form of custodial institution it is perhaps not so

important that this particular issue be resolved ; but it would have to be

borne in mind when and if the wisdom of the policy of segregation of offen-

ders became an issue.

The policy of using special institutions also carries with it all the advan-

tages and disadvantages of decentralization of any organization ; however,

it would appear that the advantages would come increasingly to outweigh

the disadvantages, particularly as trained staff became available (166).

There is, by now, an extensive literature on special custodial institutions,

especially concerning the practice with regard to younger offenders in the

U.K., although some interesting material is available on such forms of treat-

ment in the U.S. (167), in various European countries (168), and elsewhere

(169).

In relation to younger offenders see the work of Hood (170) (Borstals) ;

Rose (170), Sparks and Hood (172) (Approved School); Mc Clintock (173)

(Attendance Centres) ; Dunlop and Mc Cabe (174) (Detention Centres), and

Walker (175) (Remand).

(It should be noted that an Attendance Centre is

not strictly speaking a “custodia

I”

alternative, but is, | think, usefully consi-

dered with other forms of special treatment for younger offenders ; the Remand

Home is also perhaps not best conceptualized as a custodial institution for

penal purposes, but since it does have some limited use for such purposes

(176), it is also usefully considered with the other types of “custody”.)

The policy which a country adopts toward the establishment of special

institutions will have repercussions on the rest of the system.

It may also

reflect fundamental attitudes within the society on the issue of treatment of

offenders.

As Mr. Hall Williams suggests (177), there are three preconditions

for successful reform

— 108 —

1)

and adequately trained staff ;

2)

prison population reduced to a svitable size, and

=

|

;

3)

a proper public image.

Z

»/

He quoted a former British prison commissioner, Sir Lionel kPQ)‘(,

s saying,

;;

“The penal administrator must carry out his work against the bdc

{

fé’lb,ﬂy rof

the contemporary climate of public opinion.

As long as the public image

of custodial treatment is punitive, it is difficult to introduce imaginative re-

2

forms...

It must certainly be true that be public conception of crime and pu-

nishment is an important consideration in penal reform and this is a problem

that offers a substantial challenge (about which | have written elsewhere) (178).

Let me close this section on a provocative note by giving a further quote

from Hall Williams in his paper on the “Illlusions of Treatment and Training™,

in which he challenged the present approach to training in light of modern

learning theory, and stated, “What is required may well be a deliberate and

planned attempt to use custody as an opportunity to employ subtle psycholo-

gical techniques designed to manipulate the minds and alter the attitudes of

the subjects in a manner which we have only begun to contemplate.” (179)

Group counselling, shared responsibility, partial freedom, restitution or repara-

tion were all suggested as steps in this direction.

How far along these lines

we wish to go, and what will be within our capabilities in terms of staff and

resources, will be central questions to be answered in any penal reform of

the future in East Africa (180).

2. Non-Custodial Alternatives

Finally, | wish to discuss those kinds of sanctions which are invoked by

the court as alternative to any form of penal custody.

|

do not wish to

consider bail within this category for it is not in theory an alternative to

prison or other custody for penal purposes; however, this is not to say that

bail is either an unimportant part of criminal justice procedure or that the

bail system is not in need of criminological attention.

(That it is | have made

clear elsewhere.) (181)

In fact, it is exceedingly urgent that bail, and remand,

be given careful study, for these two procedures contribute to a great extent

to the problem of over-crowded prisons (182).

One of the most difficult problems faced by the courts is the lack of

information to which they have access when sentencing—the crucial point in

terms of treatment of offenders (183).

The decision taken at that point,

however, and by whom, obviously has the greatest importance for the convicted

offender (184).

Where sentencing decisions are taken without adequate

information, there are two likely results, both of which are not conducive to

implementation of an effective programme of rehabilitation : first, the courts

will tend to take the safe decision—which means custody— and it is likely

in many cases to be far too severe a sanction; second, the decision will tend

to be related more closely than it ought to factors not pertaining to the

— 109 —

defendant’s individual nature, but rather to the nature of the offence and

perhaps to other factors unrelated to his particular circumstances.

Before discussing the many alternatives which do exist (185), it is useful

to

recall the extent of the problem.

In Tanzania

in 1966,

there were

81,253 persons committed to prison; the average daily total was 14,624

(186).

(As Eric Stockdale has pointed out (187), Holland, a country with a

population of 12 1/2 million—almost the same as that of Tanzania— has an

Of the total 81,253, as many as 37,698 were

average daily total of 1800).

subsequently discharged without a sentence of imprisonment.

(This is an area

in which research must be carried out urgently, in order to determine the use

the system is making of remand (188), for it appears that there is room for

Of

a significant reduction in the number of persons being sent into custody.)

the remaining 43,527 (189), there were 30,041 first offenders, again a possible

category for the reduction in number of imprisonment sentences.

In terms of

length of sentence, one can see a significant reduction in the use of very short

sentences, i.e. under one month, from a peak of 1658 in 1957 to 871 in 1966.

However, there were 32,005 short sentences, i.e. one to six months, which

probably reflects to some extent the number of first offences punished by

imprisonment.

Again, there is a need for research to determine the use the

courts are making of short sentences, and whether many of these sentences

The undesira-

could have been suspended or dealt with in some other fashion.

bility of short term imprisonment is, | think, clearly demonstrated by the

research of Dr. R. G. Andry (190), and others (191).

The Commissioner of

Prisons in Tanzania has described the problem in these words, “The time they

are in prison is too short for a proper study of them to be undertaken to

discover the causes and reasons for their committing a crime, to teach them

discipline, and to give them corrective treatment or rehabilitative training.

Most of the short term prisoners, if not all, are first offenders.

They have to

be vigilantly protected from association with hardened criminals.

The diffi-

culties of exercising such strict segregation from hardened criminals is often

aggravated by the lack of accommodation and other facilities coupled with

their very large number.

The question of provoding suitable productive labour

to these vast numbers is also another serious problems.” (192)

a) PROBATION

There has been a great deal written in the last few years concerning

the desirability of establishing community-based correctional techniques (193).

One of the most obvious, and one of the most widely used in the Western

countries, is probation.

Stockdale tells us that in Holland the unmber of

probationers is 10 times that of the prison population {194). On the other hand,

in Tanzania probation is not yet used to any great extent, there being only

1398 new orders in 1967 (195).

(Probation is available for juvenile as well

as adult offenders, and is no longer limited to first offenders.)

There are, of course, a number of reasons why probation has not been

more widely used in Tanzania.

It was established only relatively recently

— 110 —

(1949) ; it is only much more recently that it has applied to most areas in

the country (196); and it is apparently the case that some local magistrates

are not entirely familiar with the way in which the system works due to

its recent extension to their area.

The use of probation has increased how-

ever from 952 in 1963 (8 regions) to 1398 in 1967 (14 regions) and it is

clearly the case that the service is over-stretched at the present time.

Case

loads of 100 are not unheard of, and this compares unfavourably with the

often suggested maximum of 50 (the number considered by many in the field

of probation to be arbitrary and too high ; one authority in the U.S.A. suggests

25 to 1 as the proper ratio.)

The training of probation officers has been

considerably reorganized in Tanzania within the last year, and the programme

is most impressive (198).

Nevertheless, it will be a long time before there

is anything like a sufficient number of well-trained staff to cope with a work

load of the present size, let alone an increased load if more use is made

of probation.

The potential rehabilitative advantages of probation are, | think, consi-

derable.

In addition to avoiding the negative aspects of custodial treatment,

probation enables the offender to contribute actively to his own reform by ac-

cepting the responsibility of carrying on life in the normal way within the

community. He is also given the helping hand of his supervisor, the probation

officer, to whom he can turn for assistance, guidance and human warmth.

Obviously, for the system to work well there must be supervisors available

with appropriate skills and time in which to give attention to their charges.

As indicated earlier in this paper, the relative costs of alternative treat-

ment methods is a complex subject and one about which we have little infor-

mation.

It is thought by most observers that probation is in fact cheaper than

imprisonment.

The figures from the U.S.A. indicate that it costs $ 1500 to

keep one inmate in prison per year (1953) and probation costs were said to

range from $ 20 — $ 150, although it was suggested by one writer that

something close to $ 200 should provide a satisfactory service on a case

load of 25 (199).

Closer to home, the Commissioner of Prisons in Kenya

stated ““A punitive policy based primarily on the incarceration of offenders

is now generally considered to be very costly. The process of devising simple,

less burdensome and more effective measures is today an important goal.

The conventional solution of building more penal institutions and increasing

prison staff to cope with the increasing penal population, which, quite apart

from any other consideration, drains our countries’ financial resources and

cannot be allowed to go on indefinitely, should be replaced, where possible,

with some other better solution.

We should try and aim at treatment of

offenders outside institutions, both by greater use of intensive supervised pro-

bation as a substitute for prison sentences, and by affording early parole for

those offenders who have indicated their readiness to return to society to

live within the law” (200).

A thorough study is required to pinpoint in terms

of economics the actual advantages to be gotten from the wider use of pro-

bation if in fact, like imprisonment, it is the case that it is less expensive in

East Africa than in the West.

— 111 —

Two questions which must be considered in an evaluation of probation

as an alternative to imprisonment are a) to whom should probation apply ?

b) what should be the organizational structure bf the probation scheme, i.e.

should it follow the Western model (essentially a one-to-one relationship bet-

ween officer and “client””), or should it be a distinct African model, which is

perhaps even now emerging in practice ? (201)

(It is also appropriate to ask

whether there should in fact be a probation service as such ; it can be argued

that there are other procedures and structures which could fulfil some purposes

which probation is said to fulfil now and that this might be the sort of work

that UW.T., N.U.T.A., T.Y.L. and T.AN.U. could carry out effectively (202).

(I believe that this is the approach used in relation to after-care and various

forms of discharge permissible in the U.S.S.R.) (203).

Consideration ought also

to be given to developing a volunteer corps of workers who would supplement

the probation service as has been done in other countries, notably Holland

(204).

One advantage of this would be the increased number of persons who

would begin to appreciate how the system works, and how useful it is.

(Note

that supervision by police after release from prison is not a form of probation

alfhodgh it is supposed to involve some form of supervision, the concept is in

fact quite distinct (205), and, according to personal conversations with social

defence workers, both ineffective and retrograde.)

b)

DISCHARGE AND RELATED MEASURES

If the court wishes (for whatever reason, to treat the offender in some way

other than by probation, but does not wish to send him to prison, there is

a wide range of measures available.

A court may decide to give the convicted offender an absolute discharge

where it believes it the most appropriate measure (206).

This may or may

not be combined with an order for costs and compensation.

The effect is

that the convicted offender is given no further sanction, or treatment, and the

conviction is not considered a conviction for any purposes other than relating

to this matter.

(In Uganda, the court may give discharge before conviction,

or it can convict and then caution the offender) (207).

The court may decide to give a conditional discharge which is similar to

the absolute discharge, but which allows a condition of good behaviour to

be imposed by the court (208).

If the dischargee commits another offence

during the “‘period of conditional discharge”, not to exceed one year, he can

be brought into court and sentenced for the offence as to which he was pre-

viously conditionally discharged, as well as for the offence which constitutes

the breach of condition.

The court may, if it wishes, instead of or in addition to, any punishment

to which he is liable (excluding death, however) require the convicted person

to “enter into his own recognizance, with or without sureties, in such amount

as the court thinks fit, conditioned, that he shall keep the peace and be of

good behaviour for a time to be fixed by the court”.

(This appears to be

— 112 —

in effect in Tanzania only where probation does not apply, although it is

apparently still in effect throughout Kenya and Uganda.) (209)

The suspended sentence is a useful alternative to prison that has been

introduced into East Africa since independence (in 1963 in Tanzania, and in

When a defendant is convicted, the sentencer may

1969 in Uganda) (210).

wish to allow him to remain outside prison, and may not wish to invoke a

fine or probation order, as being inappropriate and/or unnecessary.

But the

Court may also feel that a discharge, even if conditional, is not a sufficiently

definite warning to an offender or to the general public.

In Tanzania and

Uganda, the courts now have the power to pass a sentence of imprisonment,

and to suspend its execution providing the offender refrains from committing

a subsequent offence.

It is clear that the suspended sentence is much like

a conditional discharge, but it has the advantage of being less ambiguous.

Thus the offender with a conditional discharge may say to himself, consciously

or otherwise, “‘even if | break the condition, | may still 'get off’ without a

prison term when they take me before the court again® ; however, the offender

who has been given a two year prison sentence, suspended, knows that if he

runs afoul of the law a second time, he will have to serve the prison sentence

he has already been given.

(Although it is the case that in some jurisdictions

using suspended sentences, the court has discretion to vary the length of time

to be served when actually executing the suspended sentence.)

As

in the

conditional discharge situation, the court is also entitled to sentence the

offender for the second offence.

(Note that in some jurisdictions, e.g. France,

it is possible to suspend a fine as well as a prison sentence.)

In Britain, the

suspensed sentence was intrduced by the Criminal Justice Act, 1967, which ena-

bled the courts to suspend sentences of two years or less (to be suspensed for

a period of from one to three years) and made it obligatory to suspend sen-

tences of six months or less, unless there are special circumstances (i.e., the

offence involves violence or a weapon, or the offender is a repeat offender).

In 1968, 32,002 offenders received suspended sentences, so it is clear that

this has bcome an alternative to prison popular with the courts (211).

<)

EXTRA-MURAL PENAL LABOUR

Extra-mural penal labour may or may not be an alternative to imprison-

ment, depending on the procedure followed.

In Tanzania, a person senten-

ced to imprisonment, for six months or less, or for the non-payment of a fine

not exceeding Shs. 1000/-, may be released for employment by a government

department or local authority, on public works which are not part of the

prison labour scheme.

This scheme was introduced into the territory in 1933

(in Kenya in 1962), and is based on the Penal Labour Ordinance, 1927, of

Palestine which was, of course, also under British rule at the time (212).

James Read has described the system in the following terms

“He (the

convicted offender) may sleep at home, or in a camp provided near the

work where necessary food while at work is provided.

The labour is super-

vised by government officers and is not paid.

The initiative

lies with the

- 113 —

prisoner himself ; he can declare himself willing to undertake such work (pro-

viding the court has not debarred him from it expressly.)

His release also

of course, depends upon the agreement of the administrative officer concerned

to provide and supervise the labour.

The convict is expected to work for six

hours daily for the term of the original sentence, or the balance remaining.

If his conduct is unsatisfactory, the officer in charge may return him to prison

for the balance of his sentence.

In the earlier and later years of the scheme,

it has been possible to release convicts directly from the court.” (213)

If the

offender breaches the terms of his release, it is a penal offence (214), but very

few people abuse the system apparently for in 1961, out of 15,569 released

(peak release figures), only 764 failed to cooperate and were returned to

prison.

This scheme has great merite if for no other reason than its beneficial

effect on the prison population.

Unfortunately, it has not expanded as it

seemed to do from 1944 (2,435 released) until 1961 ; the latest figure |

have is that 11,317 were released in 1963.

One doesn’t know the reasons

for the decrease (both relative and absolute), but this is a disappointing

pattern (a similar falling off occurred in Kenya in 1964) and there is a need

for a full study of this programme to determine how it can be better utilized

(215).

One immediate suggestion would be to widen the scope of its coverage

so that it is a possible alternative for offenders who have, for instance, been

sentenced for up to two years.

The fact that in 1962, there were no

“fai-

lures” indicates that the scheme has been run too cautiously, and that more

“marginal” persons might be given the chance to work within the programme.

There are many problems, of course, in expanding the scheme ; it would require

a considerable amonut of administration and supervision, but one would incline

to the view that it could be done and would be worth doing in terms of na-

tional development, let alone in terms of benefit to the prison system.

Additionally, when considering the reform of the programme, the question

of pay will have to be raised.

It has been the view of other writers on this

subject that such programmes have an increased rehabilitative effect where

the worker receives compensation for his effort (216).

Of course, this will

raise the wider issue of compensation for prison labour to which | have refer-

red in previous papers (217).

A measure which has been used in Britain, the U.S.A., and some Euro-

pean countries, is work-release (218) (the European equivalent is “semi-deten-

tion”).

As Walker notes, it is a “form of custody which is not so complete

as to prevent the offender from retaining his job and maintaining some sort

of relationship with his family” (219).

In fact, there are many variations of

the scheme, but it is a quasi-alternative to custody in that the offender is

released from prison only temporarily in order to go to work, be with his

family and so forth (or, alternatively, he occasionally reports for imprisonment,

say for a week-end, or some specified period, under the more sophistica-

ted schemes found in Sweden, Belgium, and Holland, particularly utilized

for special offenders such as traffic violators) (220).

Whether such a scheme

— 114 —

is necessary or possible in East Africa is a question we will want to consider.

One would suggest that given the high rate of unemployment, it might be

difficult to work in any large numbers, and that more emphasis should be

placed on expanding the extra-mural scheme.

Nevertheless, for some offenders

already employed and apparently not recidivist, it would seem useful to ex-

periment on a limited basis.

It could be that hostel schemes would be deve-

loped for offenders of this type in order to provide a more suitable place

of confinement during the non-release period.

One disadvantage of the extra-mural programme and, to a lesser extent,

of work-release, is the emphasis placed on deterrence and discipline (in the

form of regular work) as the basis for treatment.

There is a little opportu-

nity for positive measures of reform technique to be applied ; this is a problem

which will require some imaginative programming and skillful administration.

It may be that there is little that can be done in relation to extra-mural wor-

kers because of the lack of staff and the inevitable dispersion of the offenders.

Nevertheless, it is useful to bear in mind the likelihood that something more

is necessary for a properly balanced rehabilitation programme in this respect

(221).

Of course, we have at present little information to go on, and a

study of re-conviction and other signs of deviant behaviour amongst extra-

mural “graduates” is called for.

d)

RECONCILIATION :

COMPENSATION AND RELATED MEASURES

Reconciliation is a most unusual power for courts in a system based on

modern English law to exercise.

(Reconciliation was, of course, a fundamental

concept of traditional society in England, just as it has continued to be in

traditional African society.)

Unfortunately, this power has been little used,

and, as a result, the nature and scope of it are unclear.

It has been said

that the lack of use is due to the uncertain extent of this provision adopted

from Nigerian law (222), which states

“In the case of proceedings for com-

mon assault or for any other offence of a personal or private nature not amoun-

ting to felony, the court may, if of the opinion that the public interest does

not demand the infliction of a penalty, promote reconciliation, and encourage

and facilitate the settlement in an amicable way, or the proceedings on terms

of payment of compensation or other terms approved by the court, and may

thereupon order the proceedings to be stayed.” (223)

One's mouth waters

at the potential which appears to exist here, and hopes that when magistrates

become more familiar with the section, and more confident in the exercise of

their authority, that it will be used much more extensively.

In the meantime,

it is suggested that more guidance might be given from higher authority as

to the appropriate situations in which the provision might be used, the methods

to be used in reconciling the parties involved, what sanctions are to be used

if the reconciliation conditions are breached, and in general, the intended scope

of the provision.

Research might begin by examining the use that has been

made of the provision in both East and West Africa, and by looking to me-

thods of traditional reconciliation for guidance ; and to such procedures as

“compounding” used in Northern Nigeria (224) and in India (225).

— 115 —

Compensation is a power which one would expect to find in an African

country, given the traditional emphasis on this form of “treatment” of offen-

ders (226).

It appears that this power is relatively little used (except where

the Minimum Sentences Act, which expressly provides for it, applies) (227)

and this is due to lack of tradition (within the common law system) and the

resultant unfamiliarity with this codified, as opposed to customary, procedure.

Read suggests also that as a result of pressure of work, the courts tend not

to use this power because they haven't sufficient time to make the inquiries

necessary for an intelligent use of it (228).

The general provision allows the

court to order compensation only up to Shs. 2000/- (which is a limitation that

should be reconsidered in any general review of magistrates’ sentencing po-

wers).

It is also restricted to cases in which “it appears from the evidence that

some other person, whether or not he is the prosecutor or a witness in the

case, has suffered material loss or personal injury in consequence of the

offence committed and that substantial compensation is, in the opinion of the

court, recoverable by that person by civil suit, such court may, in its discre-

tion and in addition to any other lawful punishment, order the convicted per-

son to pay to that other person such compensation, in kind or in money, as the

court deems fair and reasonable” (229).

One queries whether the restriction

concerning material loss or personal injury is supportable (what about injury

to reputation—would this be considered ““material” ?), and one also questions

the reason for limiting the power to cases in which the person to be compensa-

ted could recover in a civil suit.

How strict is this provision ?

What poten-

tial bars to recovery in a civil suit make this power inapplicable ?

(Note that

a recovery in a civil suit will not necessarily provide a double recovery, as

the amount awarded under this power shall be taken into account in awarding

judgment in the civil suit.) (230)

This is an area of penal “treatment” which

It

must be given serious consideration for reform, expansion, and publicity.

is clearly most directly related to the customary process, and should be used

and developed in order to make the modern procedure more consistent with

traditional views, and therefore more acceptable to the vast majority of the

people (231).

(Reform would seem even more necessary in Kenya where com-

pensation is allowed only out of a fine imposed, and heavy fines are not to be

awarded in order to create a compensation fund.

In Tanzania and Uganda,

payment out of a fine is optional.) (232)

Professor Junod has emphasized the need to return to African concepts

in dealing with offenders, and has suggested the setting up of a National

Insurance Fund which would provide indirect restitution to victims of crime,

the money to come from the excess created by “productive prison labour.” (233)

It is interesting to note that a scheme of this sort (financed out of general

revenue) has been adopted in a number of Anglo-American jurisdictions (New

Zealand, U.K., and several states of the U.S.A.) (234)

Although in some of

his writings Junod puts considerable emphasis on payment to the victim rather

than on considerations of its effects on the offender—which is, arguably, one

of the benefits of such a scheme, and must be considered to be an effective

sanction in traditional society (235)— in fairness to Junod, it should be said

— 116 —

that in other reports of his scheme, he shows clearly that he had these matters

well in mind (236).

It should also be borne in mind that compensation by the

offender may be illusory in a great many cases since he will have nothing to

compensate with ; it may also be argued that an order for compensation may

interfere with other types of reformatory treatment because of its effect on his

attitude, particularly if he sees it as a heavy burden which will keep him in

financial difficulty after his formal treatment is concuded. These are objections

which will have to be met in any reconsideration of compensation as a sanction

under the criminal law.

Costs may also be ordered to be paid by the convicted offender (237).

The order for costs is discretionary, and are to be “such reasonable costs

as ..may seem fif”’, not in excess of Shs.2000/— ; costs may be paid to

either public or private prosecutor.

The number of cases in which this power

is used appears to be small, and decided cases indicate that the power will

Costs can be awarded

be exercised only in exceptional circumstances (238).

in addition to compensation and, conceivably, to any other punishment, although

that is not expressly stated.

It might be argued that costs should not be asses-

sable against the offender, that in view of the possibility of fining him, ordering

him to pay compensation and sanctioning him in other ways, that the state

should bear its full responsibility by underwriting the cost of the criminal

process.

An analysis of the proper inter-relationship between costs, compensa-

tion, and fines in a socialist Tanzania would seem especially useful and, indeed,

even urgent.

Restitution of property is a measure which courts may use in cases of

This will seldom, if ever, be used by itself,

theft and related offences (239).

and in that sense is not strictly an alternative to prison, but combined with

other sanctions may be so used.

THE USE OF FINES

e)

The use of fines (240) has historically been very common in East

Africa (241), and covers a wide range of offences, particularly minor Penal

Code offences, violation of other statutes, and, in general whenever imprison-

ment is provided for, a fine is a possible alternative sanction ; the court may

order either, the court having discretion to order fine or imprisonment; if

both may be ordered, the court has the same discretion, but where it orders a

fine with or without imprisonment, it may also order in its discretion a sentence

to be served in default of payment (@ maximum scale of equivalents is esta-

blished).

Where no sum is expressed in the legislation establishing the criminal

offence, the amount of the fine which may be imposed is unlimited, but shall

not be excessive.

Fines raise a number of interesting problems, particularly in an econo-

mically under-developed country, and even more so in one building Socialism

with the emphasis on distribution of wealth and the elimination of privilege

based on class differentials (which are, essen.ﬁally, based on economic diffe-

— 47 =

rentials).

The fine has been said to be both retributive and preventive, in

terms of both general and special deterrence (242).

Additionally, it could

be argued (as with almost any penalty short of death), that there is some

rehabilitative effect also (although this is perhaps much clearer in regard to

costs, and certainly so with regard to compensation).

Whether the fine is an effective punishment is perhaps an easier ques-

tion to answer than the same question with regard to other forms of punish-

ment.

There seems to be a much more direct relationship between a fine

and an offender’s subsequent behaviour than there is with other forms of

treatment, involving as they do, many more variables.

Walker comments,

“Although fines are the least spectacular of penal measures, they are nume-

rically the most important, certainly the cheapest, and by no means the least

effective” (243).

Of course, what Walker says of fines in the United King-

dom may have little bearing on the situation in East Africa, and this will have

to be the subject of a great deal of research.

(Thus Walker talks of “sligh-

tly less than one per cent of these fines led to imprisonment for default”. (244)

One suspects the figures for Tanzania would reveal a considerably higher

rate of default.)

The trend in the U.K. is to rely more on fines; the Criminal

Justice Act, 1967, has increased the scope of permissible usage, has increased

the amount assessable, and has introduced new measures for collecting fines—

again, the purpose of this legislation is very much toward reducing the prison

population and should be studied from that perspective (245).

Another point

to consider is to what extent the fine should be used in conjunction with other

punishments, such as conditional discharge, probation, and suspended sen-

tence.

The English approach has been restrictive apparently in the belief that

a fine, like oil, will not mix with the water of sanctions more reformatory in

nature (246).

If we assume, on the basis of such evidence as Walker presents from

the U.K. (and this will have to guide us until we can begin to see the East

African pattern, based on empirical research), that the fine can be effective

as a deterrent, is it nevertheless a sanction which is not justified on other

grounds stemming from the special circumstances of East Africa (especially

Tanzania) alluded to above ?

One argument that has been raised is that a

fine entitles the rich man to buy the right to break the law.

The Supreme

Court of Kenya dealt with a case in which the issue was considered more or

less in those terms

an Asian woman was convicted of dangerous driving,

and the magistrate refused to fine her on the ground that “It should not be

able to be said of any convicted person that he or she has been enabled to

buy his or her way out of the consequences of the act for which he or she

has been convicted.

I think the only appropriate deterrent (sic) is a short

sentence of imprisonment.”

The magistrate awarded three months, but was

reversed, the Supreme Court stating

“We consider it irrelevant that any fine

that might have been imposed would be paid by the appellant’'s husband or

relations and, indeed, there was no evidential basis for such a supposition.

The determination of the nature of the penalty to be inflicted should depend

mainly on the fact and circumsfa‘nces of the case.” (247)

— 118 —

There are several points which one might consider here.

First, isn't it

possible that the payment of fines by relatives is, in fact, a useful device

which can contribute to, rather than impede, social control through the crimi-

nal law ?

Other writers have commented on the “watering-down” effect of

group payment of sanctions (whether fines, costs, or compensation) (248) but

to my knowledge, only Milner has considered the parallel to traditional sanc-

tion with the proper perspective (249).

Although the direct special deterrent

effect may be watered-down, it is possible that the social pressure (which

admittedly may vary from community to community) will operate both as an

indirect special deterrent (various private sanctions may follow a group pay-

ment, and many precede, or threaten, in the case of second offences) and as

a more effective general deterrent because the sanction has already stung

the members of the community, both individually and as members interested

in keeping group wealth intact.

Second, the court here has taken a restricted view of “the circumstances

of the case”.

Surely, it is proper to consider, and courts constantly do consi-

der, the characteristics of the convicted offender when sentencing, and one

does not, | would suggest, have to rely on the principle of “Ideological Parity”

to suggest such a view (250).

(This is not to reject that principle, of which

| believe we have not heard the last.

| would suggest that it might be justi-

Why then should the

fied particularly in relation to sentencing offenders.)

court not consider the offender’s financial status when it is sound, just as

The fact must be faced

they are enjoined so to do when it is weak (251).

squarely that there are great disparities in wealth in this part of the world,

and it is suggested that a review of sentencing policy should include a consi-

deration of principles of sentencing consistent with the aims of the criminal

justice system and, equally important, with the fundamental doctrines of socia-

lism.

It is quite possible that such a review would result in a recommenda-

tion which would be consistent with the lower court in the Kenya case cited

above ; another possible recommendation would be to construct a sliding scale

of fines which would be directly related to the offender’s present earning rate

(or capacity ?) for at least some, if not all, types of offences.

Would such an inquiry result in a recommendation that fines should be

abolished as being inconsistent with socialist ideology ?

At the present time,

| would suppose not, the supposition being based on the view that socialism

has not yet been achieved and that money still plays an important part in the

lives of many members of the community.

Since money is important, it is

a sanction which is felt and is probably effective in relation to some kinds

of offences.

Therefore, if used discriminately, and upon a carefully thought-

out policy basis, it can assist in redistributing wealth.

It can be conceived of

as a kind of “crime tax” on those eligible (offenders of a certain type, of

a certain economic status) and in this sense is consistent with a socialist ap-

proach.

To combat the argument that the rich man achieves the right to buy

his licence to commit offences, one would seek a flexible system of fines

which would make such activity unbeneficial to the offender; and additional

sanctions might be invoked with the fine where the court would have reason

— 149 =

to believe that such an attempt was made deliberately (this would be somewhat

analogous to the view expressed by Lord Devlin in regard to punitive civil

damages in the case of Rookes v. Barnard.) (252)

Further, there ought to be

consideration of a scheme whereby offenders are either encouraged, or per-

haps compelled in some circumstances, to do productive work in addition, or in

lieu of, the fine.

Thus, in the case of traffic violations, offenders might be

assigned to do work on weekends or at night

a clerk to help in the records

division, a mechanic to work on police vehicles, and miscellaneous people

could be assigned to tasks such as painting lines and signs on the roadway

and various other useful tasks (253).

As the country moves closer.to achieving a socialist society, one would

perhaps expect to see a de-emphasis of financial means in all aspects of life,

and that this would hold true of the criminal justice system as well,

f)

CAPITAL AND CORPORAL PUNISHMENT

Capital punishment is, of course, a conceivable alternative to imprison-

ment, but | do not wish to discuss it as a part of a paper which is essentially

oriented toward rehabilitation (254).

(Also, | have another paper not yet

complete in which the question of capital punishment will be comprehensively

discussed.)

With regard to corporal punishment (255), | have written at some length

on this subject elsewhere (256), and do not wish to go over the same territory

again.

It should be sufficient to say that corporal punishment may be viewed

as an alternative to imprisonment ; in practice it has not been so much used

in that way, but rather as an additional deterrent sanction (257).

g)

PAROLE

A parole system can be treated as an alternative to prison in the sense

that the offender does not spend all his treatment time in prison ; it is, however,

not a full-blown alternative in that the offender starts out in prison and then

earns his parole after a period of time spent inside the institution.

Parole is

a method of early release with supervision for a period of time by a parole

Parole differs from remission in that the latter

or probation officer (258).

is a system by which a sentence of imprisonment is reduced due to good beha-

viour within the prison, whereas suitability for parole is based on many addi-

tional considerations.

In fact, each imprisoned offender is credited with one-

third remission, and forfeits it as punishment.

Although there is no parole

system in East Africa, all East African countries use remission (259).

Another method of release is license (Uganda and Kenya), whereby an

offender is given an early release from prison without supervision as in parole

(260).

Release on license, like parole, is granted to inmates who have appa-

rently good prospects for a successful reintegration into the community ; this

is judged on many factors such as age, previous criminal record, previous

employment record, type of offence, prison performance, nature of employment

- 120 —

prospects, extent and quality of social relationships outside the prison, and so

forth.

Signs of incipient physical deterioration may also be justifiable grounds

for release from prison on parole or license.

Early release of this kind is

limited to those offenders serving a term of four years or more, and only

during the last 3 months of the term.

The Commissioner of Prisons may impose

conditions, specifies the duration of parole, and may recall the parolee at any

time (261).

A proper system of parole would require an expansion of the probation

system, or development of some alternative concept as discussed above in

connection with probation.

(Parole could be considered along with “after-

care”, which is not within the ambit of this paper, but some form of which

is an essential element in any successful system of penal treatment.

There

is here a yawning gap in the penal system of Tanzania, where after-care

in any organized sense is almost completely lacking (262).

Organizations

exist in Uganda and Kenya, but how much they are able to do is not clear.)

Additionally, such a system of early release would also require some degree

of additional flexibility in the sentencing and treatment processes, about which

| have written in another paper (263).

It is probably the case that a comprehensive system of parole would not

be a successful innovation in East Africa at present due to the lack of staff,

training, and experience in rehabilitation work.

On the other hand, the sys-

tem employed with apparent success at Malindi Approved School, Tanzania,

which is a discharge-release (that is, there is no supervision, and unlike license,

a subsequent offence is treated de novo, not as a triggering mechanism

which may result in the licensee being reincarcerated on the basis of his

prior offence, the sanction from which he has been released on licence), ope-

rates on the principle of an indeterminate sentence (with upper maximum),

which is fundamental to a parole system.

It is possible, then, that a parole sys-

tem might be evolved, perhaps on a limited basis, for particular types of offen-

ders and perhaps with a structure somewhat modified from the traditional Wes-

tern model.

CONCLUDING COMMENTS

h)

In discussing customary law, and in particular sanctions under customary

criminal law, its relevance for reform of the foreign-imposed codes has been

emphasized by two writers in particular.

Both Junod and Milner, in their

different styles, raise important issues.

In terms of procedure, Junod provides

We

two iteresting suggestions, both related to restitution.

have mentioned

above the State Fund which he advocates; he also favours the use of “‘the

family or village court... which could easily be adapted, even in rural areas,

to restitution in nature by work™ (264).

This reminds one of the recent public

discussions in Tanzania concerning the use of traditional procedures, parti-

cularly in the rural areas, to impose traditional sanctions in order to encou-

rage a communal attitude and discourage individual laziness (265).

It

is

perhaps advisable to continue along this line of development in our research.

How can traditional sanctions be imposed in terms of procedure ? (266). What

— 121 —

sanctions should be considered “‘traditional” (calling a fine a fine does not

make it more or less “traditional”) ?

(See the work of Read (267), Milner

(268) and Tanner (269), on customary sanctions.)

Which ones should be

retained ?

In what areas [behavioural (270), geographical (271)] should

they be employed ?

This last question, of course, raises many problems,

some of a political nature.

Milner’s contribution to the task of evaluating and attempting to integrate

customary sanctions and procedures is an extremely useful one.

It is far less

evangelical than Junod's (who was, after all, a preacher among his other

activities) but by its critical approach fits well, putting in perspective some of

the problems we face in considering reform in this area.

Thus Milner states,

“The obvious differences between life in traditional communities and that in

the modern world make customary laws an unsvitable means of controlling

most of Nigeria's public life today.

The basic unit for many legal purposes

has ceased to be the village ; and as it has lost its isolation and self-sufficiency,

so its customary law has lost the main focus of its attention...

In large urban

areas, where the primary social controls become inadequate, where anonymity

accompanies restlessness, where squalor stands side by side with extravagance

and commercial success, the effectiveness of laws and penalties breaks down.

Even the most idealistic proponent of customary law cannot pretend that it

has much relevance to the new communities to which it was never intented

to apply.” (272)

Despite this apparently critical approach to customary law

(and perhaps in terms of East African conditions it is too much influenced by

conditions peculiar to Nigeria), Milner in fact recognizes the continuing rele-

vance of customary sanctions, and makes some very astute comments thereupon.

Thus he states in his article that one of the main reasons for considering

customary criminal law is tha

f“

social control in many Nigerian Communities

has changed little in the last hundred years...

The argument can certainly be

put forward that the attitudes of customary law—not necessarily the laws

themselves— might be of use in criminal adjudication in these communities.

Secondly, there may be much in the ideas of customary criminal law that is

He

admirable and that could be copied by a modern penal system.” (273)

also makes the interesting point that one probably must look to traditional

ideas to understand the way in which African magistrates (at least those

without formal legal training) operate the “modern” system.

Thus,

an

analysis of sentencing patterns in native courts of Northern Nigeria indicates

a considerable difference in sentencing patterns between Moslem and non-

Moslem, the former relying much more on imprisonment (and long-term at

that) while the latter tend toward a greater use of fines and the principle of

“compounding”.

(He indicates that the Moslem courts’ pattern is much closer

His discussion of the

to that of the magistrates and High Courts.)

(274)

relationship of penal sanctions to social structure is brief but illuminating, and

goes some distance toward explaining why some communities relied far more

than did others upon compensation and reconciliation (as opposed to the more

severe sanctions such as mutilation), and also upon imprisonment in the case

of the highly centralized and powerful Moslem emirates, the Yoruba and Bini

kingdoms (275).

= ijogpr

One area to which Milner refers and which has nowhere been discussed

adequately is the potential for social control that resides in which he calls

“the broad social sanctions of customary law”, such as public disapproval,

ostracism, and similar pressures that are brought to bear.

It is true that

Tanner, for instance, has described social control of this type through com-

munal action in Sukumaland (276), but this was in the context of customary

procedure and not the modern court system.

Milner stated that his “‘concern

is simply to ask that these pressures always be recognized.

The question

whether the offender has suffered enough is not always too near the front

of the sentencer’'s mind.

If it is not, the penalty imposed may simply be

unnecessary, for the social sanction will already have done its work™. (277)

But | would suggest that our concern must go deeper, to ask whether these

kinds of social pressures cannot be utilized as a modern form of sanction,

indeed as an alternative to prison—or to any other form of punishment.

It seems to me that these are extremely potent sanctions which, if properly

uvtilized and organized, may go a long way toward establishing an effective

system of social control not seen in the West.

Certainly it is this kind of

sanction one has felt in the Socialist countries of Europe (278) and which one

reads about in Cuba (279) and in China (280).

It would seem to me that

this is the area in which assessors could play a significant role in sentencing,

as | have suggested elsehwere might be a useful modification of current sen-

tencing procedure (281).

Finally, as | have suggested above and elsewhere (282), there is some-

thing to be said for limited experimentation with some of these processes, parti-

cularly in the rural areas where we know that there is considerable alienation

from the modern system, where the people are already experimenting, and

where the policy of some governments seems to favour such an approach (283).

APPENDIX

Table 1 : Crime Statistics — Tanzania (*)

TRUE OFFENCES

OFFENCE

1964

1967

c e s e e

1)

Abusive language .

4,275

5,622

e e e e e

907

979

2)

Rape

e e

180

139

3)

Unnatural

R R I I I R

789

4)

Murder

PRI

e e

e e e e e

565

24

5)

Manslaughter

e e e e e

ce e

OGO OO O RO

66

*) Figures obtained from annual reports of Tanzania Police, except those for

1967 which cere given in a Seminar address by Mr. Sawaya, Commissioner for C.I.D.,

November 1968.

— 123 —

6)

Thefts, under Shs. 1000/-

s e e s e e s s e e e e e

27,690

35,000

e e s s s s e e st s e e

838

1,490

7)

Thefts, over Shs. 1000/-

8)

Theft—Public Servant

c s s e e s s e s s e s e e

830

936

?)

Theft—Political Society Official

84

97

10)

Theft—Trade Union Official

35

84

T I R

37

60

1)

Theft—Co op. Official

Burglary

s e s s s s s e s s s e e s s e s e e s e s s e e e s

6,178

8,323

12)

13)

Housebreaking

e s e s e s s s e s e s e s e e e et s e e e

7,052

8,173

14)

Cattle Theft

T R R A

2,081

2,257

Total Crimes

Penal and Statutory Offences

REPORTED

TRUE

1964

134,135

116,161

1966

© s s s s e s s s s s s e s s s e e

144,902 (not available)

1967

PR T R R A A A

160,317

138,572

Table 2 : Prisons Statistics — Tanzania (*)

a) 1964

(Men—Women)

b) 1966

Total Number Committed . .

76,305 (1) (73,034 : 2,394)

81,253

Committals for

Custody

a) Safe

(subse-

quently discharged)

36,141

(34,043

1,221)

37,698

e ee e e

b)

Imprisonment

40,111

(38,939 : 1,172)

43,527

P A R RC RN

53

(not available)

28

c) Debt

Previous Record of those Im-

prisoned (supra 2 b) :

a) First Offender

G0 00000

27,5222

(26,474 : 1,059)

30,041

b) Second Offender

6,791

( 6,720

71)

7,676

G400 UP0- O 0 IO ORG - O

5,787

5,790

c) Recidivist

( 5745

42)

A%

From Appendix to «Various Aspects of the Imprisonment System in

Tanzania

Problems and Prospects» ; end Annual Report, Prisons Department (1964).

(1) This fgure includes 877 juveniles (under 15).

— 124 —

Length of Sentence Imposed:

Under one month

871

a)

1,102

( 1,039

63)

b) Over, to 6 months

29,262

(28,293

969)

32,005

c) Over 6 months to 2 years

7,617

( 7,343

274)

7,810

d) Over 2 years

P )

1,966

( 1,950

16)

2,368

Daily Average in Prison

12,436

14,624

(not available)

Age Groups (of 26 above) :

Under 15

c ot e e e e

a)

(Nil)

b) Between 15-20

5,408

c) Between 20-25

c e e

9,221

d) Between 25-50

“ee e

24,318

e) Over 50

st e s e s e

1,164

A G e

FOOTNOTES : ALTERNATIVES TO PRISON IN EAST AFRICA

(1) The literature on the aims of a penal system is vast; for a recent challen-

ging discussion which forms one part of an excellent general consideration of penal

practice, see N.D. Walker, Sentencing in a Rational Society (London

Allen Lane, The

Penguin Press, 1969), Chapter 1.

For a critique of Walker's views, see P.J. Fitzgerald,

«The Aims of a Penal System», (1967) Criminal Law Review 621; R. Cross «Senten-

cing in a Rational Society» (1970) Criminal Law Review 4.

See also G. Boehringer,

«Preliminary Thoughts on a Socialist Penology» (Dar-es-Salaam : Mimeo, Faculty of Law,

1968 ; hereafter cited as «Socialist Penology»).

Tanzania Prison Service, Annual Report,

1964 ;

see also O.K. Rugimbana,

(2)

«Various Aspects of the Imprisonment System in East Africa», 2 East African

Journal 18 (1966).

(This article by the former Commissioner of Tanzania's Prison Ser-

vice, will hereafter be cited «Various Aspects—Imprisonments».)

(3) For penal statistics, see Appendix.

(4) The use of «models», long the preserve of non-legal social scientists, has now

been adopted by lawyers and others working in law and related fields.

See, e.g.,

Walker's explanation of the «Sentencing Model», op. cit., Appendix

; and on a grand

scale, R.B. Seidman, «Law and Development

A. General Model and Agenda for Re-

search» (Mimeo. paper presented to the University of East Africa Social Science Con-

ference, Nairobi, December 1969).

(5) The literature on the nature of the prison and the reaction of inmates there

to has become enormous in the last decade.

For descriptions of the situation in East

Africa, see R.E.S. Tanner, «The East African Experience of Imprisonment» in A. Milner

1969) p. 295 ff.

(ed.), African Penal Systems (London

Routledge and Kegan Paul,

See generally R.A.

loward, et al (eds), Theoretical Studies in Social Organization of

tu-

the Prison (N.Y. : Russell Sage Foundation, 1960) and D.R. Cressey, The Prison

dies in Institutional Organization and Change (N.Y. : Holt, Rinehart and Winston, 1961).

An excellent personal account is that of « Zeno», Life (London

Mac Millan, 1968).

(6) On the characteristics of «total institutions», of which the prison is only one

type, see E. Goffman, Asylums (N.Y.

Doubleday, 1961).

@)

See Tanzania, Preventive Detention Act, No. 60, 1962 ; and see ].5.R. Cole and

W.N. Denison, Tanganyika (London

Stevens, 1964).

(8

See Uganda, Habitual Criminals (Preventive Detention), Ordinance, Cap. 6€0.

See also ].S. Read, «Some Legal Problems in East Africa», 2 E.A.L.J. 39 (1966).

(9) See Kenya, Rev. Laws, Cap. 91.

In 1925 the British Colonial administration

established Detention Camps in order to detain minor offenders for short periods of

time (up to six months).

The number committed grew to over 75,00 annually in

1;

however, the Kenya government has, since 1962, used a system of extramural em-

ployment to cut down the intake of the Detention Camps which in 1964 received about

,000 committals

however, the use of extramural penal labour did not replace De-

tention Camps as some Government officials had apparently intended, because com-

mittals rose again to 33,409 in 1966.

Kenya, Annual Report on Treatment of Offenders,

1966 (Nairobi

Government Printer,

1967).

In that year 27,162 persons took part in

extramural penal employment.

(10) See ].S. Read, supra, n°® 8, for a brief review of the position in East Africa;

for a longer discussion with the historical perspective, see Read’s chapter on ¢Kenya,

and Uganda?®® in Milner, supra, n° 5, p.

(11) “¢European? is used here to include states of the Americas; some mention

will be made of aspects of penal systems in other parts of the world as well.

(12) See, generally, D. Glaser, The Effectiveness of a Prison and Parole System

(Indianapolis

Bobbs Merrill, 1964).

(13) See, e.g. H.P. Junod, ¢“Reform of Penal Systems in Africa’?, 2 E.A.LJ. 31, 32

(1966).

see S. Sc

or a general discussion on the subject of compensation to victims of crime,

See also the

er, Restitution to Victims of Crime (London

Tavistock, 1961).

following reports, published prior to the institution of a system by the British Government

n

1964

Justice,

« Compensation

or

Victims

o

rimes of Violence »

(London

Stevens

1962)

onservative Political

Centre,

«Victims

of

Violence»

(London

Cons

Pol

Cent

1962) ; Report of the Working Party on «Compensation for Victims

of Violence» (London

H

Cmnd.

1408,

1961) ;

Penal

actice

in a

an-

ging Society (London

H.M.S'.O., Cmnd. 645, 1959). See the White Paper setting out

the Government's scheme, « Compensation for Victims of Crimes of Violence », (London

H.M.S.0., Cmnd. 2323, 1964) and also the annual report of the Criminal Injuries Com-

pensation Board (London H.M.S.0O.)

For a commentary on the British scheme and

others (New Zealand), various American jurisdictions)

in which the author points out

that the inspiration for the scheme came to Miss Margery Fry when she «learnt of the

— 126 —

tribal system whereby the chief (in Uganda) collected from a murderer and his family

the means to support the wife and children of the victim», see

M;

ga, «Who Pays

for the Criminal ?», The Standard (Tanzania), 9 Dec. 1969 (hereafter The Standard).

It should be pointed out that a system of compensation was not unknown to tribes in

other parts of the world including those inhabiting Northern Europe over a thousand

years ago.

The Eskimo people had a system whereby compensation to a widow often

came in the form of a new husband, either the murderer or another from his family.

Finally, Jeremy Bentham argued for a system of compensation in the 18th Century.

(14) See, e.g., R.E.S. Tanner, «Law Enforcement by Communal Action in Sukuma-

Tanganyika Territory», 7 J.A.A. 159 (1955) ; and see the theoretical work of Scan-

land, |

avian writers in Sociology of Law in 10 Acta Sociologica (1966) esp. V. Goldschmidt,

«Primary Sanction Behaviour» at 173.

(15) There is considerable doubt as to what sanctions were in fact used in cus-

tomary society, under what circumstances, and at what historical point in time with

relation to different types of societies.

See, e.g. Read, supra n° 8 at 51 ; J.W. Katende,

«Why Were Punishments in Pre-European East Africa Mainly Compensative rather than

Punitive», 2 J. of the Denning Law Soc. 122 (1967).

For a treatment of the historical

development of European sanctions, see G. Rusche and O. Kirchheimer, Punishment

and Social Structure (N.Y. : Col. U. Press, 1939); see also P.

msey, «Why Penal

aws Become Harsher

The Roman Case», 13 Natural Law Form 141 (1968).

(16) Judicial matters are not «union matters» under the constitution of the United

Republic' of Tanzemia (combining Tanganyika and Zanzibar), see Interim Constitution,

Act. Ne 43, 1965, Section 85.

Thus it is happening that different systems of justice are

evolving in the two jurisdictions.

(17) The Nationalist (Tanzania), 15 July 1968 (hereafter The Nationalist).

(18) See articles in The Standard, 16 July 1968 ; 26 October 1968 ; 12, 13, 19 May

1969 ; 25 July 1

.

(19)

The

Standard, 2 jem. 1970.

(20)

The Standard, 12 Aug. 1969.

The

(21)

Nationalist, 5 May 1969.

(22)

The

Times (London), 16 Feb. 1970 (hereafter The Times).

(23)

The Standard, 26 Oct.

1968.

(24)

The Standard, 15 July 1968.

(25)

The Nationalist, 15 July 1968.

(26)

The

Standard, 31 August 1969.

The

(27)

Standard, 16 July 1968.

(28) Government Notice Ne 219, 29-8-69 ; see Arbitration Tribunals Regulations, 1969

(introduced under Section 15 (a), Magistrates Courts Act,

, Cap. 53

It is not

clear whether the Tribunals will have criminal jurisdiction although the wording of

Section 10 (1, b) «any dispute» would seem to indicate that criminal matters might be

included.

In any case, the introduction into the judicial system of a formal system

of dispute settling by arbitration is clearly a recognition of customary principles, and

it can be considered likely that the common law dichotomy between criminal and civil

matters will tend to become less significant, as under customary law. For some of

the ideological background relating to the introduction of the Tribunals, see J.K. Nye-

rere, Freedom and Development (Dar-es-Salaam : Government Printers, pamphlet, 1968)

in which the President discusses the need for democratic decision-making and community

discipline.

(29) Act No 6, 1969.

(30) Supplementing one of the earliest reforms to the penal code making it an

offence to dissuade others from assisting in self-help schemes, Tanzania Penal Code,

ap. 16, section 89 c.

(31) See the full text of President Nyerere's directive, The Standard, 18 Oct. 1968.

See also the editorial, «Peasant Power», The Standard, 17 Oct. 1968, and the following

news reports

«Shirkers to be Punished»,

The Standard,

16 Oct.

1968 ;

«No Forced

Labour Assures Kisumo», The Standard, 9 Jan. 1969.

For Nyerere's first public remarks

on the subject, see «Nyerere Calls for Laws to Make People Work», The Standard, 31

Jan. 1

(32) The Standard, 2 Jan. 1968. Another example was the forcible public display

of alleged seducers of young school girls, at Mwanza Stadium, Sunday News (Tanzania),

17 March 1968 (hereafter Sunday News).

(33) Research at several Resettlement schemes in Northern Tanganyika by Mr.

S. Kifua, a second-year law student at

ar-es-Salaam, revealed that a system of jus-

tice (of a customary type, i.e. a «baraza») had evolved, without Government action, but

simply as a more or less spontaneous response by people isolated geographically from

the formal, government system.

—_ 127 —

(34). The use of TANU Youth League to enforce «Operation Vijana» (Tanzania's

Cultural Revolution) through discussion, example, and persuasion sanctioned by social

pressures, was an interesting, and so far as it went, a successful operation.

(35) A third development is the use of TANU 10 house (political) cell leaders

to settle disputes.

Little research

as been done on this an

thus far nothing has

been published to my knowledge.

Nevertheless, it is clear that many disputes, civil

and criminal, are being referred to the cell leaders and are being settled at that level.

Police officers in my classes at the Law Faculty have informed me that it is now

standard police procedure to ask complainants with minor troubles to go, if they have

not already, to their 10 house cell leader.

And see reports of 2 cases in which TANU

cell leaders had been involved in settling a dispute but which eventually went to

court (because of dissatisfaction with the intervention by the cell leaders, apparently).

«Youth Denies Drugs Charge», The Standard, 16 October 1968, « Youth Tried to Give

Girl Abortion», The Standard, 30 October 1968, and «Ex-Concubine Cleared of Stealing»,

The Standard, 2 November 1969.

36) See M. Bomani, «Machinery of Justice in a Developing Society», East Africa

Journal, May 1966.

See also my discussion of a method for reviewing such questions

in «Socialist Penology», p.

12, and in expanded form in Boehringer, «Social Defence

Planning in the Context of Development with Special Reference to Tanzania» (Paper

submitted to University of East Africa Social Science Conference, Nairobi, December

1969, hereafter cited as «Social Defence Planning»).

Finally, see ILL. Kato, «Methodo-

logy of Law Reform» in G.F.A. Sawyerr (ed.), East African Law and Social Change

(Nairobi

ee

SO

«Some Problems

of

East African Publishing House, 1967).

Eorsi,

aking the Law», 3 E.ALLJ. 272 (1967) ; eand W. Whitford eand Y. P.

hai, «Private

Law Reform in East Africa» (Paper presented to the Law and Sociology Workshop,

Kikuyu, Kenya, April 1968).

(37) Thus questions arise as to the advisability of using the criminal law in

<

regard to such matters as sexual behaviour (e.g. homosexuality), addiction (whether

to drugs or alcohol), and abortion.

For general discussions on this topic, see S.H.

Kadish, «The Crisis of Over-criminalization», 374 Annals of the Am. Academy of Pol.

1

and Soc,

157 (Nov.

1967), and H.L. Packer, The Limits of the Criminal Sanction

(Stanford : Stanford

supra, n. 8, p.

fI:I. Press, 1969). See also Read’'s discussion vis-a-vis East Africa,

(38) Again, many questions arise as to the usefulness of the criminal law with

regard to types of offenders ;

recently in both America and

ritain a considerable

literature has grown up with regard to mentally abnormal offenders and the criminal

sanction, see e.g. L.H. Frankel, «Preventive Restraints and Just Compensation

Toward

a Sanction Law of the Futures, 78 Yale L.J. 229 (1968) on the American experience ;

and see the international symposium recently published, A.V.S. de Reuck and R. Porter,

The Mentally Abnormal Offender (London

J. and A. Churchill Ltd.,

1968) ;

particu-

larly, however, see in that volume chapters by A.S. Goldstein, «The mentally disordered

offender and the Criminal Law» and E

Bittner, «The concept of mental abnormality in

the administration of justice outside the courtroomn».

More generally, see R. Donnelly,

J. Goldstein, and R.

wartz, Criminal Law (New Haven

Yale Universit

y Prt'ass, 1959).

See also the seminal article by J.D. Grant and M.Q. Grant, «A Group

T

Ppro-

ach to the Treatment of Nonconformists in the Navy», 322 The Annals 126 (March 1959)

i

for a Socialist view,

see_e.g.,

Romashkin (ed.), Fundamentals of Soviet Law

(Moscow : Foreign Lang. Publ. House).

(39) See Read’'s discussion of «speculation» as «economic crime» in the U.S.S.R.

which has no_direct counterpart in the Anglo-American system imposed upon the coun-

tries of East Africa, supra n. 8, p. 40. The move toward making «shirking» from seli-

help schemes illega

is an interestin

departure from traditional Common Law prin-

ciples, supra n. 30, 31.

e use of

ANU Youth League cadres in «Operation Vijona»

(supra, n. 34) also raises the

uestion whether informal sanctions (education, persu-

asion, ostracism, etc.) ought to

e organized in such a way, particularly against per-

sonal behaviour (wearing of Western style clothing, i.e. mini-skirts, tight trousers, and

using certain cosmetic techniques, i.e. wigs and bleaching powder, etc. on the skin)

which although perhaps culturally offensive from an African point of view, is unlikely

See

to create public disorder or to amount to public indecency in the usual sense.

G.H. Boehringer, «Developments in Criminology in Tanzamia» (paper presented to the

University of East Africa Social Science Conference, Kampala, December 1968 ; here-

after cited «Developements in Criminology», Section III, C, ¢).

(40) ‘With regard to problems generally, Mao Tse-Tung has pointed to the neces-

Contradiction» he states

sity of considering alternatives, e.g. in «

«The principle

of using different methods to resolve different contradictions is one which Marxist-

Leninists must strictly observe», Quotations from Mao Tse-Tung (Peking : Foreign Lan-

guage Press, 1966).

gland and Wales, «you camnot train men for

(41) The remark by Alexander Paterson, former Commissioner of Prisons for En-

reedom in a condition of captivity» is

cited by P.J. Fitzgerald in his useful survey, Criminal Law and Punishment (London

Oxford University Press,

1962).

See the report o

some experiments in the English

pencﬂ. system in F.E. Emery, Freedom and Justice Within Walls (London : Tavistock,

— 128 —

(42

See generally,

W.C. Turnbladh, «Substitutes for Imprisonment»,

293 The

Annals 112 (May 1954)

There are arguments which can be made, however, that at

least some offenders, in some circumstances, must be helped in an institution, if they

are to be helped at all, see e.g.

er, « A Model of an Institution for Treating

Adolescent Delinquent Boys» in H. Klare (ed.), Changing Concepts of Crime and Its

Treatment (London

Pergamon,

)

On the nature of «ireatment institutions» which

might make reform effective, see generally ]J.C. Spencer, «Problems in Transition

from

Prison to Therapeutic Community», in P. Halmos (ed.), Sociological Review Monograph

No. 9,

P

13 (Keele

Univ. of Keele,

1965, hereafter cited as Soc.

Rev. Mono.)

99. For the Abolitionist position,

see

Sington and G. Playfair,

Crime,

Pu-

nishment and Cure (London : Secker and Warburg, 1965), a stimulating look at current

penal policies around the world as well as in Britain.

(43) See G. Sykes, Crime and Society (N.Y.

Random House, 2nd ed., 1967) in

which he summarizes the findings of earlier work, including his own, on the nature of

imprisonment ; see also the work of Cloward, Cressey end Tanner, supra n. 5.

(44) See Boehringer, «Social Defence Planning», and Packer, supra, n. 37, chap. 15.

Although costs are not so high in East Africa as elsewhere, a considerable amount

is put into the penal system; thus in 1967, Kenya spent 34,911,920/- (net) on her Pri-

son Department (Annual Report, Treatment of Offenders, 1967) ; in the same year, it

was announced that 8,000,000/- was to be spent on a new prison, The Standard, 18

Oct.

(45) Self-reliance has been the policy of the Prison Service as clearly enunciated

by the Minister for Home Affairs, see The Nationalist, 30 Dec. 1967, where he is repor-

ted to have «called upon all prisons in Tanzania to be fully self-reliont by 1968 and

emphasized that not a cent of the tax-payers’ money should be used for feeding, clo-

thing, or maintaining the prisoners thenceforth».

The goal was not reached in 1968

(in fiscal year 1967/68, it is estimated that Shs. 2.45 million was earned

rom prison

industry,

compared to shs.

6.77n.

expenses.

The Prison Service saved Shs.

5.5m.

by procuding and consuming crops) ; nevertheless, substancial progress has been made,

see the year's review published in a special Republic Day supplement, The Standard,

5 Dec. 1969. See M.H. Cooper and R.D. King, «Social and Economic Problems of Prisoners’

Workn»,

Halmos (ed.).

Soc. Rev. Mono.,

145, ‘wherein the possible conflicts between

«prison as business» and «prison as reform agency» are discussed ; and see «Develop-

ments in Criminology», Section III, B. 4 ‘where I discuss such aspects of prison labour at

some lenght; see also my «Socialist Penology».

(46) Total annual expenditure, capital as well as current, for the Prison Depart-

ment, England and Wales, reached almost £ 50 million in 1969 (People in Prison, Cmnd.

4214,

1969, para. 23.

Total net expenditure was £ 38,875.387 in 1967-68 (Report on the

Work of the Prison Department, Cmnd. 4186

1968) while the daily average number

of inmates was 35,071.

It is extremely difficult

to compare forms of treatment in terms

of expense, but it was estimated that in 1964 the cost of the Probation Service was

£4.5 million, and over 40,000 were placed on probation (The Probation Service in En-

There is the additional benefit from non-custodial

gland and Wales, London, H.M.S.0.)

treatment of getting the offender back into the community where he may m

e a much

more positive economic contribution then he could ‘while in prison.

On relative costs,

see also Sington and Playfair, supra, n. 42.

(47) Conversations with people who have visited China have borme out this view ;

and see F. Greene, The Wall Has Two Sides (London : Jonathan Cape, 1962) ; report

by S. and R. Gelder on the Peking prison, The Evening Standard (London), 1 June 1966.

See

so M. Macauley, Russia—A New Look at Crime (London

I

T

1966), and N.

Goodman, Yugoslavia—A New Look at Crime (London

LSIT. DY,

1967).

to Cuba, see article in Granma (Havana), June 1969.

With regard

(48) That there are so few inmates (perhaps several thousand) in the main prisons

of Peking and Shangai as reported to me and corroborated by e.g. Greene, op. cit.,

indicates that the Chinese are dealing with deviants in other ways; see S.C. Leng,

«Post-Constitutional Development of ‘People’s Justice’ in Chinan,

O!

nt.

omm.

Jurists 103 (Spring 1965) in which he discusses aspects of crime, law ocnd sanctions in

the Peoples’ Republic (unfortunately it seems a jaundiced view, as the title indicates).

And see with regard to the

.R., H. Berman, «The Dilemma of Soviet Law

eform»,

76 Hav. L.R. 929 (1963) ; T. Napolitano, «Outline of Modern Soviet Criminal Law», 7 J.

Int. Comm. Jurists 53 (Summer 1966) and the early survey J. Hazard, «Trends in the

Soviet Treatment of Crime», 5 Am. Soc, Rev. 566 (1940).

With regard to Cuba, see M.

Frayn, The Observer (London), 19 Jan. 1969,

(49) J.E. Hall Williams, «Illusions about Training and Treatment», Proceedings of

the 12 th Inter.

Course in Criminology (Jerusalem, 1962).

(50) See People in Prisons, supra n. 46, p. 16-17, 104. The main reforms brought

about by the Act are a system of parole ; suspended sentences (obligatory for sentences

of 6 months or less, except for violent crimes and crimes committed by non-first offen-

ders) ; legislative restrictions on the use of remand in custody, coupled with libera-

lised use of bail and social enquiry reports; increased powers to fine offenders and

modified fine-enforcement procedures designed to cut down the number of those

im-

prisoned for default in payment.

e

ct

as been effective, but not nearly to

the

extent necessary to solve the problem of an over-burdened prison system ; there

are

now over 2.000 more offenders confined in the prisons of England and Wales (see

ar-

— 129 —

ticle by N. Fowler, The Times, 14 March 1970, quoting a letter from a Minister of State,

Home Office).

(51) See Rugimbana, supra, n. 2. The Tanzanion Government has introduced an

experimental scheme similar in some ways to work colonies in the U.S.S.R. (see Macau-

P. Je-

ley, supra, n. 47), and to the Tres Marias Penal Colony in Mexico (see e.g.

well, «Mexico's Tres Marias Penal Colony», 48 J. Crim. Law, Criminology and Pol.

Sci. 410 (1957), but nevertheless with important unique features; see the Re-Settlement

of Offenders Act,

.

(52) Rugimbana, supra, n

2

Saikwa of Kenya, in «An Approach to Penal

Administration in East Africa», 2 E

fA.L'.Ii

25 (1966).

(53) Op. cit, p. 49.

(54) Ibid.,

(55) See a brief discussion by L.T. Wilkins, «Evaluation of Penal Treatments»

in Soc. Rev.

ono., 237. See also R.G. Hood, «Research on the Effectiveness of Punish-

ments and Treatments», in Collected Studies in Criminological Research, Vol. I (Stras-

bour

Council of Europe pamphlet, 1967) ; this series hereafter referred to as Colec-

ted

tudies in Research) ; and see a group of papers on the same theme in Council

of Europe, The Effectiveness of Punishment and Other Measures of Treatment (Stras-

bourg : pamphlet, 1967).

Also useful is J.E. Hall Williams, «Evaluating Penal Methods»,

18 Int. Soc. Sci. J. 162 (1966).

For material directly concerning Africa, see W. Clifford,

«The Evaluation of Methods used for the Prevention and Treatment of Juvenile Delin-

quency in Africa South of the Sahara», 21 Int. Rev. of Cri. Policy 17 (1963) ; see also

M.E. Aougi, «The Evaluation of Methods Used for the Prevention of Juvenile Delinquency

in the Arab Countries», 21

nt. Rev. of Cr. Policy 33 (1963) ; M. Lopez-Rey, «Prelimi-

nary Considerations on Formulation of Policy for the Prevention of Juvenile Delinquency

in Developing Countries», Pt. I,

t. Ann. of Crim. 73 (1964).

(56) Supra, n. 49.

I have pointed out some of the areas which are particularly

ripe for review in my paper «Developments in Criminology», especialy Section III B.

See also my paper, «Social Defence Planning» for a full discussions of the necessity

for integrating such research into national planning, and

e manner in which I

envi-

sioned this might be provided for.

1

(57) Boehringer, « Socialist Penology», p,

58) I still find useful J.H. Driberg, «The African Concept of Law», 34 African

Affairs 230 (1935).

The best material on sanctions in Africa is probably A. Milner,

«The Sanctions of Customary Criminal Law :

Study in Social Controly,

1 Nigerian

L.J. 173 (1965).

See also R.A.

Maguire, «The Masai Penal Code», 28 African Affairs

12 (1928-9) ;

Katende, supra, n

15;

Boehringer,

«Socialist Penology»,

p

15, ‘where

I plead

or

a critical

look at

traditional practices

in

the context

of

arguing

for sanctions consonant with Socialism in oan

rican country.

For some observations

on the problems of sanctions and sanctioning in a colonial situation elsewhere, see

A. W. Bentzon, «The

tructure of the Judicial System and Its Function in a Developing

Society», 10 Acta Sociologica 121 (1966) (concerning Danes in Greenland).

(59) See Rusche ond Kirchheimer, supra n. 15;

see also J. Hall,

Theft,

Law

and Society (Indianapolis

Bobbs Merrill, 2nd ed.

1952), and J.]. Tobias, Crime and

Industrial Society in the 19th Century (London : Batsford, 1967).

(60) The nature of the relationship between penal measures and political, social,

and economic developments is a matter which has been debated at least since Montes-

quieu published The Spirit of the Laws in 1748.

For a general survey of that very

important period in the development of penal philosophy, see ]. Heath, Eighteenth Cen-

tury Penal Theory (Oxford :

Oxford University Press,

1963).

See also Rusche and

Kirchheimer, supra, n. 15; Garnsey, ibid.; L

adzinowicz, Ideology and Crime (Lon-

don

Heineman, 1967) ; P.A. Sorokin, Social and Cultural Dynamics (N.Y.

American

Book Company, 1937), Vol. 2, 523 ff.

The works of E. Durkheim contain a considerable

amount of material on the subject, see e.

The Division of Labour in Society (N.Y. :

The Free Press, 1964), The Rules of Sociological Method (N.Y.: The Free Press, 1964),

which mainly discuss the sociological factor; he also discusses the political factor in

4 L’'Année sociologique (1899-1900), 65ff, wherein he outlines his «Deux lois de l'evo-

lution penale».

For a critique of Durkheim’s view, see E.A. Tiryakicn, «Durkheim’s

‘Two Laws of Penal Evolution'», 3 |

for the Scientific Study of Religion 261 (1963-4).

For a more psychologically orientated discussion, see

von Hentig, Punishment, Its

Origin, Purpose and Psychology (London

Hodge, 1937).

e.g. T. Sellin, «Penal Institutions», Encyclopedia of the Social Sciences,

XII (Ngv York,

1934) ; idem, «Correction in Historical Perspective», 23 Law and

on-

temp. Problems 585 (Autumn 1958).

Some of the intellectual impetus for development

of new methods of treatment have, of course, come

rom the criminologist themselves,

although it is difficult to judge how much influence such commentators have, directly

or indirectly. Nevertheless, two o

the most impressive works, produced in Britain at

a time when a new Labour Government had established an era of reform, may be

in some part apposite for Africa today. See A Mannheim, Criminal Justice and Social

Reconstruction (Oxford :

Oxford Univ. Press,

1946) ond M. Grunhut,

Penal Reform

(Oxford

Oxford Univ. Press, 1948) ; see clso Mannheim’s earlier work, The Dilemma

of Penal Reform (London

Allen eand Unwin, 1939).

It is interesting to note that both

Mannheim and Grunhut were refugees from Nazism and both brought to their new

— 130 —

land a fresh approach to old problems.

For a brief critical appraisal of developments

in Western penology, see A.C. Schnur, «The New Penology :

Fact or Fiction 7», 49

]. of Cr. L., crim., and Pol. S. 331 (Nov. 1958).

«The Codification of Customary Law

in Tanzania»,

2

R.E.S. Tanner,

E.A.L.I(?s

105 (1966), which is perhaps the best example of a critique of East African

civil law in terms of the effect on the

civil system of reforming substantive law an

procedure.

In this and another article (see «The Selective Use of Legal Systems in

East Africa»,

Makerere Institute for Social Research, Conference Paper N° 393, 1965),

Tanner has attempted to relate the administration o

f civil justice to at least some im-

portant social conditions.

Some papers of interest in

a similar vein were presented

to the Law and Sociology

Workshop at Kikuyu, April 1968 ; see

e.g. A. Kuper, «Poli-

tical Aspects of the Judicial Process Among the Kalahari» ; R

. Barot, «The Informal Sett-

lement of Rent Disputes in Bakuli, Mengo» ;

J.M.N. Kakooza,

«The Role of Clans in the

Settlement of Family Problems» ;

P.H. Gulliver,

«Dispute Settlement by Negotiation

An Arusha Land Case» ; and W. Withford and Y.P. Ghai,

«Private Law Reform in East

African.

Perhaps the best summary of

(64) See e.g. Sington and Playlair, supra, n. 42.

New

orizans in Crimi-

such views is to be found in H.

Barnes and N.K. Teeters,

1951), chap. 39.

But there

nology (Englewood Cliffs, N.J.

Prentice-Hall,

2nd edn.,

old, «Does the

are others who do not take such a sceptical view, see e.g.

. Hood

Prison Reform ?», 293 The Annals 42 (May 1954).

See also R.F. Sparks and ad R.

ins-

(eds.), The Residental Treatment of Disturbed

and Delinquent Boys (Cambridge

titue of Criminology, 1968) ; D. Miller, Growth to Freedom (L

ondon

Tavistock, 1964) ;

ibid., «A Model of an Institution for Treating Adolescent Delinquent

Boys» in Klare (ed.),

supra, n. 43,

And see Glaser, supra, n

1

(65) Supra, n. 41, at 243-245.

D. Clemmer, The Prison Community (N.Y. : Rinehart, 1958) ; originally pu-

blished in 1940.

(67) A quotation from the Thirteenth Annual Report of the prison inspectors, Eas-

tern Penitentiary, Philadelphia, Pennsylvania, reported in Bames and Teeters, supra,

n

. at p.

(68) See works by Cloward and Cressey, supra n. 5; G.M. Sykes,

The Society

of Captives (Princeton

Princeton University Press, 1958) oand T. Mathiesen,

Defences

of the Weak (London : Tavistock, 1965).

Tanner's work seems to confirm the British and

American results, see supra n. 5 for summaries of

work in the field. See T.P, Morris,

«The Sociology of the Prison» in Grygier,

et al,

Criminology in Transition (London

Tavistock,

1965,

ibid., «Research on the

Prison Community» in Collected Studies in

Research, vol.

and Cultural Studies of the Environment of the Place of Detention or Treatment», in

o

967),

. 125; D. Blomberg, «Survey from the Standpoint of Sociological

The Effectiveness of Punishment and Other Measures of Treatment (Strasbourg : Council

of Europe, 1967).

(69) See a report of research into the development of the inmate value system,

which considers most of the earlier work referred to above,

.F. Cline an

eeler,

«The Determinants of Normative Patterns in Correctional Institutions» in N. Christie (ed.),

Tavistock, 1968).

Scandinavian Studies in Criminology, vol. 2 (London

Y

W. Mc Corkle and R. Komn,

«Resocialization Within Walls»,

293.

The

Annals 88, (May, 19

(71) For a brief summary of his own work, and additional references, see G.

Sykes, Crime an Society (N.Y.

Random House, 2nd ed., 1967).

A Sociological Study of an English Prison

72) T.P. and P. Morris, Pentonville

(London

Routledge and Kegan Paul, 1 3

(73) A considerable amount of work has been done on institutions, both penal

and other, which indicate that the informal social structure which arises has conside-

rable significance for the effective operation of the institution ; e.g.

fman, supra, n. 6;

E. Gross, Work and Society (N.Y.: Crowell, 1958), 572-4 (discussing the foreman in

his industrial social setting) ; S. Stoufer, et al,

e

erican Soldier (Princeton

Prin-

ceton Univ. Press,

)

One of the most useful general discussion is to be found in

arcourt, Brace and World, 1950) ; and more

.C. Homans, The Human Group (N.Y. .

A

c

recently,

Etzioni (ed.), Complex Organisations

A Sociological Reader (N.Y. :

Graw Hill, 1961).

(74) Supra, n. 6

see more generally on the relationship between Clem-

mer's work and that o

f Sutherl

and (and Cressey), in

. Wheeler, «Socialisation in Cor-

rectional Communities», 26 Am. Soc. Rev. 697 (1961).

(75)

My own impression, from informal soundings, is that a situation some what

similar to the «prison community» concept exists in at least some of Tanzemia's prisons,

both large maximum securtly and smaller, special, institutions.

See also Tanner, n.

For a theoretical discussion of the prison situation in America, see

vkes and

S.L. Messinger, «The Inmate Social System» in Cloward, supra, n. 5. And for a rele-

vant discussion of interaction within orgamizations generally, see

Barnard, «Functions

and Pathology of Status Systems in Formal Organisation»,

in W.F. Whyte,

Industry

and State (N.Y.

Mc Graw-Hill, 1946),

— 131 —

(76) The former Commissioner of Prisons stated that the problem of preventing

contamination of the susceptible by contact with the real criminals is a very real one,

«Rugimbana», «Various Aspects».

thus he states

(77) Sykes tends to de-emphasize the differences in institutions ;

that although there is some lack of uniformity, «underlying this diversity are certain

uniform features of social organisation that stem from the undeniable fact that penal

institutions are places where large groups of individuals are

involuntarily confined

under conditions of extreme deprivation.

However, much this fact may be softened

by an official

interest in rehabilitation,

recreational facilities,

humane custodians,

or

earned privileges, the fact remains», supra, n. 71, at 171.

Recent studies however tend

to cast some doubt on the uniformity theory adopted by Sykes.

See Tanner, supra,

n. 5 and «Sex Behind Bars», 27 Transition 28 (Kampala

1966) ; Mathiesen, supra, n.

9 ;

Cline (with Wheeler) supra, n, 69.

It is interesting that Sykes ignored the differential

effect on prison sociology of the society «outside», ‘particularly when American society

has been said by several importemt American criminologists to be, in effect, seriously

G.B.

criminogenic

old, Theoretical Criminology (N.Y.

Oxford Univ. Press,

1958) ;

D.R. Taft and R. England, Criminology (N.Y. : Macmillan, 4th ed., 1964).

(78) D. Glaser and J.R. Stratton, «Measuring Inmate Change in Prison» in Cressey,

supra n. 5; Wheeler, surra n. 74.

ee also M.E. Wolfgang, «Quantitative Analysis of

Adjustment to the Prison Community», 151 J. Cr. L

rim., and Pol. Sci. 87 (1961).

For

further material on inmate reaction to the prison situation, see D.L., Garrity, «The Pri-

son as a Rehabilitation Agency» in Cressey, supra n. 5;

.H. Sandhu, «The Impact

of Short-Term Institutionalisation on Prison Inmates», 4 B. J

Crim. 461 (1964) ;

AM.

Rose and G.H. Weber, «Changes in Attitudes among Delinquent Boys Committed to

Open and Closed Institutions», 52 J. Cr

L., Crim., and Pol. Sci. 166 (1961).

And see

H.W. Mattick, «Some Latent Functions of Imprisonment», J. of Cr. L., Crim., and Pol.

Sci. 237 (1959).

(79) Supra, n. 68.

(80) See references to Sykes' work, supra n. 71, 75 (Sykes and Messinger). And

see the work, of Cline and Wheeler, supra n.

(81) Supra, n. 71, p. 178.

(82) Supra, n. 68, p. 8.

(83) Report of the Inquiry into Prison Escapes and Security (London

HMSO,

Cmnd. 3175, 1966).

For a subsequent report with a much more intelligent approach to

related penal problems, see Report of the Advisory Council on the Penal System : The

Regime for Long-Term Prisoners in Conditions of Maximum Security (London

HMSO,

1968).

A number of leading criminologists forecast a gloomy aftermath to «Mountbatten».

My recent inquiries of persons working within the system indicate that the prison

regime has deteriorated ; and there are other reports to the same effect, e.g. G. Hod-

gson, «Lock ‘em up an

leave ‘emy», Sunday Times (London), 23 Nov. 1969, in which

it is said that since Mountbatten, «The emphasis has shifted towards containment and

away from rehabilitation, and—especially in the big closed central and local prisons—

conditions have deteriorated sharply».

It is perhaps significant that one of the worst

prison riots in British history, broke out in one of these prisons (Parkhurst, October 1969) ;

see a report «Prison Riot Became a Ferocious Battlen, The Times, 10 Feb. 1970, which

indicates the degree of the deterioration,

(84) For an excellent brief review of various theories relating to prison riot cau-

sation, see Sutherland and Cressey, Principles of Criminology, 6th edn., 506-509 (and re-

ferences therein).

(85) Sykes, supra, n. 71, p 178-80.

(86) Ibid., p. 183

(87) See Tanner, supra, n. 5; idem

, and other work cited, supra, n.

«Crime and Punishment in East A

frican, 21 Tromsition 35 (Kampala

19

'77 ; Tanner,

(88) See e.g. G.M. Sykes and David Matza, «Techniques of Neutralization

A

theory of Delinquency», 22 Am. Soc. Rev. 664 (Dec. 1957).

Matza has gone on to deve-

lop a theory of delinque:

ncy using « neutralizations » as a key concept

; see Delinquency

and Drift (N.Y. : Wiley, 1964).

(89) See e.g. A. K. Cohen, Delinquent Boys (N.Y.: Free Press, 1955). Another

writer takes a different position however, and argues that

working class children are

deviant with respect to middle class norms not because t

ey wish to «make it» and

react aggressively when they don't,

but because middle class norms simply do not

gibe with working class norms,

see W. Miller, «Lower Clas:

s Culture as a Generating

Mileu of Gang Delinquency», XIV J. of Soc. Issues 5 (1958)

.

It would seem that T.P.

Morris’s study of Croydon wo

uld support Miller, see The Criminal Area (London

Rout-

ledge, 1957) ; nevertheless,

I would

not hold them mutually exclusive,

see some validity in Cohen’s theory, and thus do

(90) Sykes, supra, n. 71, p

182

(91) Ibid., p. 172

(92) Ibid.

— 132 —

(93) Tomner, supra, n. 5, 77, 87.

(34) Sykes, op. cit., 177.

A most effective dramatization of the manner in which

a «subject» person corrupts, and finally controls, his «superior» was in the film, «The

Servant», with Dirk Bogarde.

It is interesting that Galtung has found staff corruption

in a Scandinavian penal

institution,

see Fengselssamfunnet (The Prison Community)

(Oslo

Universitetsforlaget, 1959) as did Cressey with regard to the American prison he

studied, supra, n. 5, p.

M

(95) See e.g. ]. Phelan, Nine Murderers and Me (London

Phoenix House, 1967).

(96) Supra, n. 68; see also, «The Sociology of Prisons

Problems for Future Re-

search»,

17 B. ]J. Soc.

3

60 (1966).

(97) See Defences of the Weak, p. 11-14, 150-212, for his discussion of censorious-

ness.

(98) In an excellent and provocative concluding chapter (p. 213-32), Mathiesen

dinavia.

goes beyond the penal institution and refers to a study of industrial workers in Scan-

rom a comparaison of the industrial workers’ situation where solidarity was

inmates’

situation which was the

clear and censoriousness lacking, and the prison

reverse, Mathiesen deduced that one basic different existed : that the workers’ «bar-

gaining position» was strong, and that of the inmates weak; thus for the latter there

was no point in solidarity as nothing could be achieved by the weak, whose «defence»

is censoriousness.

Mathiesen’s technique of extending his research to non-penal insti-

tutions is a brilliant reminder of the need for criminologists to cast a very wide net in

their attempts to understand penal phenomena.

(99)

At p. 183

(100) See his geneal discussion, ibid., 9-17.

(101) See especially «Sex Behind Bars» ; and supra n. 5.

(102) See especially ¢Sex Behind Bars?®; and supra, n. 5.

(103) Hard labour was said to be going to be re-introduced into Kenya prisons,

The Standard, 7 Nov. 1968.

This is part of a general pattern I have pointed out el-

sewhere, the Kenya government has been apparently split over the sort of penal

policy to pursue, see «Developments in Criminology», fns. 7

1

i

1

See Boehringer,

«Socialist

Penology» ;

idem,

«Developments

in Crimino-

logy», Section III B for some suggestions along these lines.

The Re-Settlement Centres

opened in Tanzania under the 1969 Act would be a major step in this direction, invol-

ving as they do, granting of rights such as having one’s family at the centre, and the

possibility of ultimately turning these minimum-security centres into «ujamaa»

(com-

munal villages with the cooperation of other «settlers» and their families.

See also

E

Bowden, «Convicted Offenders

Penal Practices involving their employment». E.A.J.

(March 1969).

(105) See The Standard, 8 February

1962. Conjugal visits have been

rejected

in the UK. also, see latest report in The Times, 1 December 1969, in which the Home

Office is said to have rejected a proposal by the Commons Estimates Committed on

Prisons (in July 1969) that the Government should accept the principal of such visits

which were recommended by the Howard League for Penal Reform.

(106) See e.g. D.P. Jewell, «Mexico’s Tres Marias Penal Colony», 48, ]J. of Cr. L

'

Crim. and Pol. Sci. 410 (1957), reprinted in D. Dressler (ed), Readings in Criminology

and Penology (N.Y.: Columbia U. Press, 1964).

See also N.K. Teeters, World Penal

Systems (Philadelphia

Pennsylvania Prison Society, 1944) ; E.S. Zemans and R. Cavan,

«Marital Relationships of Prisoners», 49 J. o

T

L

rim.,

and Pol.

Sci.

50 (1958) ;

E.P. Hopper, «The Conjugal Visit at Mississippi State Penitentiary», in Dressler, op. cit. ;

J. Conrad, Crime and Its Correction (London

Tavistock, 1965) 165; M. Macaulay, supra,

n. 47 ; S. and R. Gelder, ibid; «Why Wives Should Go to Jaily, a feature article in

the Sunday Times, 7 April 1968. In Britain the Government has recently rejected a

proposal by the Howard League for Penal Reform to allow prison visits of up to 48

hours for wives, see The Times, 1 Dec. 1969. The groundsfor refusal were «practical

difficulties» and that home leave would be preferable.

For the effects of isolation of

prisoners on the wives, see P. Morris, Prisoners and Their Families (London : 1965) .

(107) See Tanner, «Sex Behind Bars».

(108) See generally Sykes, supra n. 68.

xuals in Prison»,

of Soc. Therapy 112 (1955) ;

See also H. Bluestone, et al., «Homose-

id., 137 ; A.V. Huffman

D.W, Cory, «Homosexuality in Prison »

'

. C. Greco and J. C. Wright,

. «Sex Deviation in a Prison Community», id. vol. 6,

170 (1960) ;

«The Correctional Institution in the Etiology of Chronic

Homosexuality», 14 Am. J. of Orthopsychiatry 295 (1944) ; B

Prisons», 38

arpman,

«Sex Life in

r. L., Crim. and Pol. Sci. 475 (1948) ; R

'W. Nice, « The Problem of

Homosexuality in Corrections», 28 Am

«Charactedistics of Homosexuall

of Correction, 30 (1966) ; W. G. Miller and

I

Hannum,

y Involved Incarcerated Females», 27

of Consulting Psychiatry 277 (1963) ;

D.A. Ward and G.G. Kassebaum, Women's

Prison : Sex and Social Structure (Chica

o

Aldine, 1965) ; J. Henry, Who Lie in Gaol

(London

Gollancz,

1952) ; A

Heckstal

Smith, Eighteen Months (London

Wingate,

1954).

On the problem of homosexualit

y generally see

]

est,

Homosexuality

(London

Penguin, 2nd rev. ed. 1968) ;

Report of the Committee on Homosexual Offen-

ces and Prostitution (London

HMSCO, Cmnd. 247,

1957).

— 133 —

(109) See Boehringer, « Socialist Penology».

(110) See Emery, supra, n. 4l.

(111) This is a subject I intend to return to in cnother paper, but I would like

to suggest, here, that one way of preparing men for freedom, and preventing reci-

divism amongst former prisoners, is to encourage them to participate in making deci-

sions which do and will affect their condition of life.

Thus

would suggest that a

trade union for former inmates, and perhaps even inmates, might be a significant deve-

lopment in penal reform, offering new dignity to a down-trodden section of the com-

munity, and also tapping a source of manpower and knowledge which could be applied

in various useful activities,

The literature is scant, but see P.W. Tappan, « The Legal

Rights of Prisoners», 293 The Annals 99 (1954).

(112) See T. Parker, The Frying Pan (London

Hutchinson, 1970) for a description

of the experimental psychiatric prison in England which offers some guidelines towards

possible reforms, ond consequent problems.

(113) See Rugimbana, «Various Aspects» for a discussion of the problems facing

prison administrators in East Africa.

Kenya

as apparently established a minimum

security prison for women which is something of a show-piece, see «Progressive Prison»,

The Sunday Post (Nairobi), 7 July 1968.

And at Wami, Tanzania is creating a special

regime for young offenders, see a report of a statement by the Minister for Home Affairs,

The Standard, 5 December 1969.

(114) See supra n. 45, and report of Tanzania Minister for Home Affairs, op. cit.,

which indicated that a considerable advance had been made in planning prison labour

mainly agricultural, in relation to rehabilitation.

(115) Such is the normal pattern in most countries.

An unusual situation is that

in Zanzibar where a deterrent theory is being strictly imposed on the courts (a compul-

sory five year minimum sentences for minor offences has been suggested, supra n. 16-

27).

That the government intends to establish penal institutes of a re

f

ormative type

makes it clear that there is an underlying conflict.

A better approach would have been

to designate a one-year minimum, an

eave it up to the offender to reform and thus

earn his freedom.

Probably the best method would be to make the sentence indeter-

minate (though perhaps a meximum, to provide some certain limit to the confinement,

would be advisable).

116) I have referred to this in «Socialist Penology», «Developments in Ciminology»

(III, B, 3, 4) and it is one of the major points discussed in «Social Defence Plannings.

See now the very important statement by the Minister of Home Affairs, Tanzania, indi-

cating great progress in such planning, supra n. 113.

(117) I discuss these matters in «Developments in Criminology» Section III, B,

; and see a recent article stressing the need to solve the problem of unemployed

school-leavers, «T.Y.L. to consider jobless youths», The Standard, 27 Jan. 1970, in which

it is reported that there are thousends of youths unemployed ; it is likely that many of

these will be attracted to the cities and are likely to be caught up in criminal cultures

or associations, see P. Morris, African City Life (Kam:

1968) ;

a : Nkenga Editions,

M. B. Clinard, «Poverty, Development and Deviance» (paper presented to Sociology

Workshop, Kampala, 1968).

(118)

Probation officers in Tanzania have told me that they simply do not have the

time nor the resources to provide after-care except on the most informal and haphazard

basis.

Of course, as

have indicated in «Developments in Criminology», Section II, B,

f, the entire question of after-care in an African country, particularly one building

Socialism, must still be thought through; see Western reactions to a Socialist system

(USSR) where no after-care, as such, is thought necessary, Macauley, supra, n. 47. Conrad,

supra n. 106. On after care generally, see Council of Europe, Probation and After-Care

in Certain European Countries (Strasbourg, 1964) ; see in relation to Israel, Z. Hermon,

«The Institutional Treatment and After-Care of Adult Offenders and Juvenile Delinquents

in Israel in 1.S, Drapkin et al, The Preventive of Crime and the Treatment of Offenders

in Israel (Jerusalem

Government Printer, 1965).

With regard to the British system

see, Report of the Departmental Committee on the Probation Service (London

HM.S.0.,

Cmnd. 1650, 1962) ; White Paper, People in Prison (England and Wales) (London, H.M.-

S.0., Cmnd. 4214, 1969).

However, a recent research report b:

the National Association

of After-Care and Rehabilitation Officers indicates that After-Care is seriously deficient,

The Times, 13 April 1970.

(119) See ].S. Read, «Some Legal Problems in East Africa», 2 E.A.LJ. 39 (1966) ;

idem, «Some Aspects of Manslaughter in East Africa»,

1

ALLJ. 260 (1965) ; idem,

«Some Aspects of Murder in East Africa»n, 1 E.A.L.J. 37 (1965) ; idem, « Crime and Punish-

ment in East Africa

The Twilight of Customary Law», 10 Howard Law J. 164 (1964) ;

idem, «Customary Criminal Law in Kenya», 7 J.A.L. 1 (1963) ; idem, « Criminal Law

in the Africa of Today and Tomorrow», 7 J.A.L. 5 (1965) ; idem, «Minimum Sentences in

Tanzemia», 9 J.A.L. 20 (1965).

See also, W.L. Twining, «Th Place of Customary Law

in the National Legal Systems of East Africa», (Chicago : Univ. of Chica

go (pamphlet),

1964).

And see E. Cotran, «The Position of Customary Criminal Law in

rican

oun-

triesy in G.F.A. Sawyerr, supra, n. 36; idem, Report on Customary Criminal Offences

in Kenya (Nairobi

Government Printer,

1963).

See two articles of a more special

nature which nevertheless deal with important aspects of the criminal law, R.B. Seid-

man, «Mens Rea and the Reasonable African

The Pre-Scientific World-View and Mis-

st~

take of Fact»,

15 I.C.L.Q.

1135 (1966) ; idem, «Witch-Murder cnd Mens Rea

A Pro-

blem of Society under Radical Social Change», 28 M.L.R. 46 (1965).

See also an attempt to

reconsider the

aw about which Seidman raised doubts,

in L.L.

O,

« Re-thinking

Anti-Witchcraft Legislation in East Africa» (Paper presented to the University of East

Africa Social Science Conference, Kampala, Dec.

1968).

Another author working in

the same area is A. Milner, see «M'Naughten and the Witch-Doctor

Psychiatry and

Crime in Africa», 114 U. Pa. L.R, 1134 (1966) ; and A. Milner and T. Asuni, «Psychiatry

and the Criminal Offender in Africa» in Milner, supra, n. 5; in the same volume appears

perhaps the most valuable contribution, though tantalizing because it is a ‘wide-ranging

summary and therefore inevitably superficial, by J. Costa, «Penal Policy and Under-

development in French Africa», p.

On reform with relation to private law but

with significance for law reform generally, see Y. Ghai and W. Withford, supra, n. 36,

and G. Eorsi, ibid. Going a bit farther dfield, see also E. Brongersma, «Revision of

Criminal Law in Morocco», 4 Excerpta Criminolgica 267 (1 .

(120) R.B. Seidman, A Sourcebook of the Criminal Law of Africa (London

Sweet

and Maxwell, 1966) ; ].J.R. Collingwood, Criminal Law of East and Central Africa (Lon-

don

Sweet and Maxwell, 1967).

(121) Dou

and Maxwell,

glas .Brown, Criminal Procedure in Uganda and Kenya (London : Sweet

(122) See Seidman, op. cit.

(123) There are several brief contributions relating to special aspects of homicide

in the Sudan, but otherwise there is a dearth of literature which attempts to place

criminal behaviour in the African context.

See R.A. Cook (ed.), «Blood Money and the

Law of Homicide» in the Sudan, A Documentary Survey» (1962), Sudan L.J.R. 470 ;

Stubbs, «A Short Note on the Customa

Law of the Aweil District Dinkas», id. at

p. 450 ; C. Brewster, «Punishment of Homicide Offenders—Exceptions to Penal Code Sec-

tion 251» (1963), Sudam L.J.R. 229.

(124) Contrast this with the abundant penal code reforms in Eastern Europe since

the 1939-45 war.

See generally V. Gsovski, and K. Grzybowski, Government, Law and

Courts in the Soviet Union and Eastern Euro,

e (London

Stevens,

1959).

See also

Editorial Note, «The New Criminal Code and ti

h

e Reforms in Administration» (1951, No.

2, 3) New Yugo Law 1 (a summary by F. Frol is found at p. 4, while a translation

of the Code begins at p. 39) ; Editorial Note, «Revision of the Criminal Code», (1959,

No. 8, 4) New Yugo. Law 9 (and Foreword by J. Hmecvic, p. 3) ; R.L. Donnelly, «

e

New Yugoslav_ Criminal Code», 61 Yale L.J. 510 (1952) ; B. Vybiral, «The New Criminal

o.

Law (R.C.L.) 77; A

Code of the Czechoslovak Socialist Republic» (1962,

1), Review of Contemporary

No.

1

ikline, «New Principles of Criminal Law in the U.S.S.R.» (1959,

6 R.C.L. 112; I. Timar, «Draft Penal Code of the Hugarian People’s Republicn

(1961, No. 1) R.C.L. 95; T. Horvath, «The Protection of Life, Corporeal Integrity and

Health in the New Criminal Code» (1963, No. 2) Hung. L. Rev. 37 ; L. Molnar, «Offences

against the Economic Order in the New Criminal Code» (1962, No. 1) Hung. L. Rev. 16;

Editor's Note, «Criminal Code of the Hungarian People’s Republic» (1962, No. 2) Hung.

L. Rev. 31, and Ministry of Justice, «Ministerial Motivation to the Criminal Code», id.,

13.

See also H.J. Berman, «The Dilemna of Soviet Law Reform», 76 Harv,

L.R. 92

(1963) ; idem, «Soviet Law Reform—Dateline Moscow, 1957», 66 Yale L.J. 1191 (1957).

And see the earlier work, J.N. Hazard, «Reforming Soviet Crim. Law», 29 J.

rim.

and Crim., 157 (1938).

Vamos, ‘«Courts and

(125) With reference to procedural reform in Eastern Europe, see |

1c

Basco and

Amendment of the Civil and Penal Codes of Proce-

dure» (1961, No. 2) Hung. L.R.

; M. Raginski, «The New Code of Criminal Procedure

in the R.S.F.S.R.» (1961, No. 1) R.C.L. 88.

For comprehensive bibliographies for all of

Eastern Europe, see the series edited by V.

Gsovski, Legal Sources and Bibliography

of Eastern Europe (New York : Praeger).

(126) In considering such reform

dure of other systems should not be i

, comparative analysis of substance and proce-

must suit East African conditions.

gnored, although it is obvious that what emerges

I have indicated some materials pertaining to law

n

Feldbrugge, Soviet Criminal Law

and procedure in East Europe (.

supra,

General Part

124,

125 ; infra n.

130,

133).

See also F. J.

eyden

H.W. Sythoff, 1964) ; J.A.

Cohen, The Criminal Process in the People’s Republic of Chin

a

1949-63, an Introduction

(Cambridge

Harvard U. Press,

1968) ;

Leng, Justice in Communist China (Dobbs

Ferry : Oceana, 1967) ;

H. Berman, Justice in the U.S.S.R. : An Interpretation of Soviet

Law (Cambridge

Harvard U.

ress, rev. ed., 1965) ; N. Johnson, Introduction to the

Soviet Legal System (London

Methuen, 1969) ; P.S. Romashkin (ed.) Fundamentals of

Soviet Law (Moscow

Foreign Lang.

ub. House, 1961) ; R. Schlesinger, Soviet Legal

Philosophy (Cambridge

Harvard

U

Press 1951, trans. H.W.

Bobb ;

see also Schle-

singer's earlier book Soviet Legal Theory, 1945).

See also T. Napolitano, «OQutline of

Modern Soviet Criminal Law», 67 J. Int,

Comm. Jurists 54 (Summer 1965); Beermanm,

«The Parasite Law in the Soviet Union»,

3 B.J. Crim. 71 (1962) ; H.]. Berman, «Prin-

ciples of Soviet Criminal Lawy,

56 Yale L.J. 803 (1947) ; idem,

«The Challenge of So-

viet Lawy,

62 Harvard L.R. 220; 449 (1949).

(127)

The literature is vast concerning the question of the sort of beh;;;iblxr

which ough

t to be within the purview of the law in Western societies, see e.

H.L,

art,

Law, Libert

and Morality (Oxford : Oxford Univ. Press,

1963) ;

P.

Devlin,

The Enforcement of

orals (Oxford : Oxford Univ. Press, 1965) ;

G. Williams, The Sanc-

— 135 —

tity of Lite and the Criminal Law (London

Faber, 1958).

See also the more specia-

lized works of R. Slovenko (ed.), Sexual Behaviour and the Law (Springlield Illinois

C. Thomas, 1965) ; E.M. Schur, Crimes Without Victims (Englewood Cliffs, New Jersey :

Prentice-Hall, 1965).

See also L.T. Wilkins, Social Policy, Action and Research (London

Tavistock, 1967 ; formerly Social Deviance).

From the point of view of the criminolo-

gist, a slightly different question also arises

who ought to be considered the proper

subject of criminological study ?

See Seidman,

supra n,

'

lor material directly

relating to Africa. For the views of various Western Social Scientists, see the extracts

om works by T. Sellin, E. Durkheim, W.L. Marshall and W.L. Clark, E.H. Sutherland

and P.

appan in H.E. Wolfgang, L. Savitz and N. Johnston, The Sociology of Crime

and Delinquency (N.Y. : Wiley, 1962).

Whether or not criminology is in fact a science,

with a proper scope of study, data and methods, see H.E. Wollgang and F. Ferracuti,

The subculture of Violence (London

Tavistock, 1967).

(128) For a comprehensive review of this problem, in the context of the Third

World, see Seidman, supra n. 120, p. 3-81.

And see Report by Justice, Legal Penalties

The Need for Revaluation (London

Stevens, 1959).

(129)

In addition to my papers, «Social Defence Planning» and «Socialist Penology»,

see L.L. Kato, «Methodology of Law Reform» in Sawyerr, supra n. 36 at p. 279; Whit-

ford and Ghai, supra n. 36; Eorsi, ibid.

(130) For discussion relating to East European methods of dealing with some

of these speci

problems, see G. Horgosi, «Legal Problems in Combatting Alcoholismy,

(1964, No. 1) Hung.

.

Szep, «Recent Statutory Provisions Relating to Alcoho-

lics» (1967, No. 1) Hung

s L;.R. 3

8; E

Traytlar, «The Legal Provisions of the Criminal

Code concerning the Crimes against Sexual Morals» (1964, No. 1) Hung. L.R. 18; H.J.

Berman and D. H. Hunt, «Criminal Law

Psychiatry : The Soviet Solution», 2 Stan.

L.R. 635 (1950) ; F.W. Killian and R. Arens, «Psychiatry in Soviet Criminal Proceedings»,

157

Crim L., Crim., Pol. Sci. 136; 423 (1950) ; H.]. Berman, «Law as an Instrument

of Mental Health in the United States and Soviet Russiaw, 103 U. of Pa. L. R. 361 (1961).

See generally ]. Wortis, Soviet Psychiatry (Baltimore

Williams and Wilkins,

1950).

For an account of Swedish practice, see O. Kinberg, «Forensic Psychiatry without Meta-

physics», 40 J. Crim

L

and Crim. 40; 555 (1950).

(131) See with regard to Juvenile Offenders, O. Nyquist, Juvenile Justice (London

Macmillan, 1960) ;

. Mannheim, Courts for Adolescents (London

ISTD, 1958) ; M. Grun-

hut, Juvenile Offenders Before the Courts (Oxford : Oxford U. Press, 1956).

(132) See discussion by P.]. Fitzgerald,

Lecture, Leeds U.,

«Crim, Sin and Negligence» (Inaugural

Crim., P.S. (1966) ;

;_P. Devlin, «The Police in a Changing Society», 56

rim.

Society, Prop

R.M. Jackson, Enforcing the Law (London

Macmillan, 1967) ; Law

Law Society,

osals submitted to the Home Secretary and Ministry of Transport (London

1966).

The Traffic Court has long been a part o

the American judicial

structure ; for description of it in action, see ].P. Economos, «The

Traffic Problem, Trat-

fic Laws, and Traffic Courtsy,

The Annals (May 1953) p. 5; idem, « The Traffic Court :

The Most Important in our System», 43 Am. Bar Assn. ]

322 ; T. Willett, «A Clinic for

Traffic Crimes ?», The Observer (London), 3 Dec. 1967. Bu

t see provocative article war-

ning of the problems involved in

using different law and procedure for certain types

of deviant behaviour, G.O.W.

ueller, «<How to Increase Traffic Fatalities

A Useful

Guide for Modern Legislatures and Traffic Courts», 50 Col. L.R. 944 (1960).

133) With re

rd to East Europe, see G. Gellert, «Comrades Courts in Hungary»,

(1963, No. 2), R.C.

i

45; ]. Szilbereky, «Developments

in the Administration of Justice

by Social Courts in Hungary», (1963, No. 1) Hung.

19; Decree No. 24 of 1962 of

the Presidential Council of the Hun

27.

See also

garial People’s Republic on the Social Courts id.,

vation of law and

Gorchenin, «The Participation of Workers Collectives in the preser-

order in the Soviet Union» (1960, No. 2) 7 R.C.L.

; H.J. Berman

and ].W. Spendler, «Soviet Comrades Courts»,

Lipson, «The Role of the Public in the Proces

38 Wash. L.R. 842 (1963).

And see L.

ses of Soviet Justice

Non-Courts and

Impolice» (Speech to the Am. Pol. Sci. Assn.,

'Connor, «Soviet Procedures in Civil Decisions

Annual Meeting, 7 Sept.

1963).

D.M.

A Changing Balance between Public

and Civic Systems of Public Order»,

Symposium—Law in Soviet Society, Illinois Law

Forum (Spring, 1964). On the position

of the individual in Soviet justice generdally, see

Loeber, «The Soviet Procuracy ond

the Rights of the Individual Against the State»,

1 J. of Int. Comm. Jurist 59 (1957-8,

No

(134) It is true that the African countri

es have generally attempted to abolish

customary criminal law and to substitute a Pe:

nal Code, and Read discusses this move-

ment with relation to East Afric

a, supra n. 8; but why sho

criminal offences be reinstated, e

ither in the Penal Code, or el

sewhere, as sanctionable

uld not some customary

deviance ?

(as in fact happened in Uganda and Buganda,

And

it

such devianc

e is to be sanctioned, why should it necessaril

Read, op. cit.).

the normal, perhaps unsuitable, criminal justice system ? It m:

y be sanctioned through

priate to treat such offenc

ight also be more appro-

(assuming these are to re:

main legally deviant and scmctionabl

es as bigamy, attempted suicide,

abortion,

homosexuality

b

y-passes the rather formal and somewhat inflexible criminal

e) in a manner which

-45.

justice system properly

ster, supra n.

so called. See generally Seidman, supra n. 120,

See also Cook, Stubbs, Brew-

found in M.B.

(135)

The most useful

source,

because of

the comprehensive bibliography is

inard

and R. Quinney (eds.) Crimi

nal Behaviour Systems (N.Y.

Holt,

Rinehart and Winston,

1967)

. chap. 5. And see O. Kirchheimer, Political Justice

The

— 136 —

Use of Legal Procedure for Political Ends (Princeton, N.J. : Princeton U. Press, 1961) ;

G

usche and O. Kirchheimer,

Punishment

and social Structure

(N.Y.

olum-

bia University Press,

1939) ;

‘W.A. Bonger,

Criminality and Economic Conditions

(London

Heinemamn, 1916) ; ibid., An Introduction to Criminology (London

Methuen,

1936) ;

D. Welsh, «Capital Punishment in South Africa» in Milner, supra n. 5, 395.

L. Kuper, Passive Resistance in South Africa (New Haven, Conn. : Yale University Press,

1957) ;

L. Prodl,

Political Crime (N.Y. :

Appleton,

1898) :

R.S. Cavan, «Underworld,

Conventional, and Ideological Crime», 55 J.

T

'

rim. and Pol.

Sco. 235 (1964) ;

M.E. Woligang, «Political Crimes ond Punishment in Renaissance Florence», 44 J. Cr.

L

'

Crim. and

O

Sci,

555 (1954) ;

H.L. Packer,

«Offences against the Staten,

339

The Annals 77 (1962) ; R. Quinney, «Crime in Political Perspective», 8 Am. Behavoral

Scientist 19 (1964).

General works on criminolo

do not usually deal with the con-

cept of political crime, but by the very nature

of

his conilict approach, Vold in parti-

cular does so in Theoretical Criminology (N.Y. : Oxford University Press, 1958), esp.

chap. 11; see also D.R. Taft and R.W. England, Criminology (N.Y. : Macmillan, 4th ed.,

1964) ; and see M.A. Elliott, Crime in Modern Society (N.Y.

Harper and Row, 1951).

General works on sociology sometimes deal with the concept, see e.g. E. Lemert, Social

Pathology (N.Y. : McGraw-Hill, 1951) ; and R.K. Merton and R.A. Nisbit (eds.), Con-

temporary Social Problems (N.Y. : Harcourt, Brace and World, 2nd ed., 1966).

(136) Seidman raises these problems in his chapter on «legality», supra, n. 120

(137) An excellent survey of assassination is to be found in E. Hyams, Killin

No Murder (London

Nelson,

1969).

And see Wolfgang and Ferracuti, supra, n. 127,

at 153, 275 where they discuss violence in relation to political disorder, particularly

in Colombia and Mexico.

See also E.J. Hobsbawn, Primitive Rebels (N.Y. : Praeger,

1963) ; idem, Bandits (London

Weidenfeld and Nicholson,

1970).

(138) See generally M. Ancel, Social Defence (London

Routledge and Kegan Paul,

1963).

And see L. Frankel, «Preventive Restraints and Just

ompensation

Toward a

Sanction Law of the Futures, 78 Yale L.J. 229 (1968) ; A.S. Goldstein, «The Mentally

Disordered Offender an

the

riminal Law» in A.U.S

de Reuck and R. Porter, The

Mentally Abnormal Offender (London

J. and A. Churchill,

1968) ;

E

Bittner,

«The

Concept of Mental Abnormality in the Administration of Justice outside the

ourtroompy»,

ibid. See

also

E

ur,

Narcotic Addiction

(London

Tavistock,

1963) ;

S. Kadish,

«Methodology and Criteria in Due

rocess

Adjudication—A Survey

and Criticismy,

66

Yale L.J.

319

(1957) ;

A. Dershowitz,

«The Role of

Law

in

the Prediction and Prevention of Harmful Conduct» (unpublished, but printed in part)

in J. Katz, J. Goldstein and

Dershowitz, Psychoanalysis, Psychiatry and the Law,

558 (New Haven

Yale U. Press, 1967).

(139) See «Aid Police, Sawaya Tells Tanu Youth League», The Standard, 22 Aug.

1969 ; and see a report of a Regional chairman's speech «Tanu leaders urged to help

stamp out crime», The Nationalist, 2 July, 1969.

(140) See two interesting cases bearin

on this problem which have arisen

anzania recently, Kionywaki v. R. (1968) E.

7.

195; Isango v. R. (1968) E.A. 140.

In

the latter, Chief Justice Georges stated that a Tanu leader (here a 10 house cell leader)

is a political officer and has no police powers «above those which the law allows

the citizen».

With regard to experience with the organization of citizens for such

purposes elsewhere,

see

M

Onnor,

«Soviet

People’'s Guards

experi-

ment

with Civic Police»,

39 N.Y.UL. Rev.

579

(1964) ;

R. Schlesinger,

«Volun-

tary Militia and Courts», 11 Soviet Studies 214 (1959, No 2).

See also the materials

cited supra n. 133.

There are two other articles which can be referred to, but as

Berman and Spindler point out, supra n. 133, there are some important deficiencies

in each, see Azruel, «Is Coercion Withering Away» 11 Problems of Com

munism 9 (1962,

No.

) ; Swearer, «Popular Participation

Myths and_Redlities»,

4

9 Problems of Com-

munism 42 (1960,

0. 5).

For an account of an early American

experience, see ].P.

Shalloo, «The Private Police of Pennsylvemia», 235 The Annals 55 (1

929)

(141) «Operation Vijana» was in effect a Tanzanian attem

pt to begin a cultural

revolution, that is «to clean this great nation of ours of all r

emnants of decadent Wes-

tern colonial imperialist culture but also to put it on a tr

ue Afr

ican cultural footing

based on socialist culture and morality», Editorial, The Nationalist

’

12 Dec.

ee

also «Why Operation Vijana», The Nationalist, 25 Nov.

8

t was apparently con-

ceived of within Tanu Youth League, and was implemented by

them with Government

blessing at the begi

ing of January 1969, see e.g. «We Must Pr

otect Culture—Nyerere»,

The Nationalist 2 Jan. 1969, a report of a speech by the Presi

of the desire of the youth to « re-invigorate and protect African

culturen,

dent indicating approval

of action included a campaign against mini-skirts, wigs, Western cosm

etics and blea-

The programme

ches, as well as other aspects of Western culture.

of physical violence after the initial announcement

Although there were some instances

of

these were not attributable to T.Y.L.

See «Police sav

the Operation, it appears that

8 Oct. 1968 ; see also The Standard, 8 Oct. 1968.

It seems that after

e 'mini’ girlsy,

The Nationalist,

1 Jan. 1969, the

asion and education.

official opening of the Operation, all ‘went rather quietly,

In fact, the Operation

with the emphasis on persu-

the party paper to ask in an editorial «Whete

ecame moribund rather quickly,

leading

Nationalist, 30 April 1969. Nevertheless, it see

ms

ver happened to Operation Vijan

clear that

a», The

it

also

as far as it ‘went, «Opera-

deviance, informal sanctions and the rule ot law.

tion Vijana» had some positive aspects ;

raises many questions concerning;

— 137 —

(142) See report «Old Habits Must Go-Nyerere», The Nationalist, 29 July 1969.

1

See report, «London Plea to Elders—Help Restore Cultural Values»,

The

Standard, 19 July 1969.

(144) See the Arusha Declaration (Dar-es-Salaam, Government Printer, 1967) and

Tanzania Policy on Foreign Affairs (Dar-es-Salaam, Government Printer, 1967).

(145) See «Seven Beaten to Death» (alleged thieves), The Standard, 18 April 1969 ;

«17 Peasants accused of Murder» (3 alleged cattle thieves killed) The Standard, 17 June

1969 ; «Five to Die for Killing Suspects» an alleged cattle thief), Sunday News, 7 Dec.

1969, such incidents do not only happen in Tanzania; see «Seven Murdered—Mob Law

at Jinga», alleged thieves killed in Uganda, Reporter (Nairobi), 20 Sept. 1968. See also

«Driver 'teared villagers' after crash», Sunday

ews, 23 June 1968, where a magistrate

is reported to have said to an accused who fled the scene of an accident, that «he

was aware that drivers were often in danger of being killed after such accidents.»

(146) See report «900 Vacancies in the Police», The Nationalist, 12 April 1969 ;

and see a statement, in the National Assembly by the Minister of Home Affairs indi-

cating that it was a «lack of funds» which caused the police to be short-staffed, The

Nationalist, 3 July 1969.

(147) See report, «Arms Training for Police Volunteers», The Standard, 29 Jan. 1968.

(148) See report, «Mwanza Youths Learn to Aid Police», The Standard, 4 Nov. 1968.

149) See report «Police Plea to Public—More Co-operation Needed—Shaidi», The

Standard, 5 July 1969 ; and report «Wawe of Violence Condemned», The Standard, 27

Sept.

(150)

See «Co-op Plans Own Armed Police Force», The Standard, 12 April 1969 ;

in which the Director of C.I.D. cmnounced that an «Auxiliary Police Force» scheme was

already operating in certain parastatal organisations.

The Auxilliary «force» «will be

manned exclusively by youths who have passed through National Service».

They will

have «the same powers, duties and privileges as the other members of the regular

police forcen.

The main purposes are to prevent and detect crime in such orgamisations

which «owing to its size and large content of people require such force to deal with

the commission of offences on the spot».

(151) See Mannheim and Nyquist, supra, n. 130.

See also H. Mannheim, ]. Spen-

cer and G. Lynch, «Magisterial Policy in the London Juvenile Courts»,

8 B.J.

13

(1958), Part I.

(152) This movement has gained considerable momentum since the landmark

case, Re Gault,

L. ed. 2d. 529 (1967) in which the Supreme Court outlined in an

extended opinion, the problems of maintaining the due process concept within the con-

text of juvenile justice.

Further on this subject, see E.M. Lemert, Social Action and

Legal Change

Revolution Within the Juvenile Court (Chicago

Aldine,

1970).

See

also an earlier article by a Federal judge,

elon, Justice for Juveniles,

New

Republic, 22 April 1967, 13.

On the general question of civil liberty and criminal pro-

cedure in the East European context, see T. Kiraly, «The Role of the Defence in Hun-

garian Criminal Procedure» (1963, No. 2) Hung. L.R. 5;

Bagai, «Realizing the Prin-

ciple of Defence and Safequarding the Personal Freedom of the Accused During Cri-

minal Proceedings» (1967, No. 2), Hung. L.R. 5;

.B. Taylor, «The Role of the Investi-

gator in Soviet Criminal Procedure», 7 ]. Int. Comm. Jurists 20 (Spring, 1966) ; M. Csiz-

mas, «Remand in Custody in Hungary», 7 J.

Int.

omm. Jurists 32 (Spring,

1966).

See also H.F. Zamudio, «Latin Americon Procedures for the Protection of the Indivi-

dual», 9 J. Int. Comm. Jurists 60 (Winter, 1968).

(153) See again Seidman, supra, n

120, especidlly p

60-65. Seidman asks the

challenging question, «Do you believe it possible to develop a uniform philosophy of

punishment for both

fricans

in the subsistence sector and

its associated culture,

and Africans in the commercial and industrialized sector ?»

See Read’'s discussion of

the Uganda attempt to apply special procedures and rules of evidence in one section of

the country (Karamoja) where a traditional practice—cattle theft, and related homicide

was causing a complete economic and political breakdown, 2 E.A.L.J. 50 (1966).

(154) See Annual Reports of the Prison Service (1965 is the latest published).

(155) Thus, Mr. Kawawa, Second Vice-President of Tanzania, speaking to inmates

«at Wami prison for young offenders is reported to have told them that «they were now

being taught how to lead a peaceful life and are expected to be good boys when

they go back to their parents».

The Commissioner for Social Welfare, speaking about

the Malindi Approved School is quoted as indicating that the boys are trained to be

useful citizens with a trade and «At the end of his training end when he can satisfy

authorities that his character has been rehabilited... he is taken back to his parentss,

The Nationalist, 13 November 1967.

(156) Several research projects have been carried out at Malindi, The Approved

school near Dar-es-Salaam ; unfortunately, nothing has been published thus far, but

several papers have been written and it is hoped that these will soon see the light

[

ay

us J. Mangara of the Tanzania

rison service has a paper on «The Effecti-

veness and Difficulties of a Tanzanian Approved School» ; J.P.K. Wambura, former stu-

dent in the Dar-es-Salaam Law Faculty, «A Survey of Malindi Approved School, Tenza-

nia» ; and M. Kanyi has done a paper, «A short Study of Juvenile Delinquency Based

— 138 —

on Kenya» which is in fact a study of the inmates of Kenya's approved school system ;

see «Developments in Criminology», Section II; See also P.D. Scott, «Approved School

Success Rates», 4 B.J]. Crim. 525 (1964).

H.J. Richardson, Adolescent Girls in Approved

Schools (London

Routledge and Kegan Paul,

)

(157)

The set-up at Malindi is most impressive

in terms of physical lay-out;

the general atmosphere one would describe as benevolently paternalistic.

The staff

is somewhat undermanned, and lacks training, but they are clearly sympathetic and

«treatment oriented» rather than punitive.

One did feel that the isolation of the school

had some obvious advantages,

but that there was the disadvantage of being far

away from most outside influences to which the boys would ultimately be exposed, and

therefore should encounter while at Malindi.

(158) Children in Trouble (London

H.M.S.0., Cmnd. 3601,

1968).

See now the

Children and

oung Persons Act, 1969, by which the old form of Approved Schools

has been abolished, and a new form of community centre established :

or a review

of the Act, see «A Guide to the Children Act», New Society, 1 Jan. 1970 (now ‘published

by New Society in pamphlet form) .

(159) A failure in the sense that their performance is no better than that of

.

prisons at least in terms of subsequent convictions of discharged offenders; see

Another Bri-

Benson, «Prediction Methods and Young Prisoners», 9 B.J.D. 192 (1959).

tish criminologist, A. Little, has studied the Borstal system, and commented that there

had been a deterioration in «discharge performance» of ex-Borstal Boys (during the

1950's), although one reason may have been the decline in «reception quality», a view

supported by the Report of the Prisons Dept., 1959 (London

H

Cmnd. 1117).

But Little states that «even with ‘good’ training material, the British system was not as

efficient in preventing recidivism between 1950-6 as in 1948», «Penal Theory, Penal Re-

form, and Borstal Practice», 3 B.]. Crim. 257 (1963) ; idem, «Borstal Success and the

Quality of Borstal Inmates», 2 B.J. Crim. 266 (1962). For the view from the inside,

see

the novel

by A. Sillitoe,

The Loneliness of the Long-Distance Runner (Lon-

don

Pan Books,

1961) and the auto-biographical work by B. Behan, Borstal Boy

(London

Hutchinson, 1958).

Not much has been written on the Borstals for girls, but

see 2 earlier articles b

«A Preliminary Study of 300 Female Delinquents in Bors-

tal Institutions»,

1 B.J.

B.E187 (

1951) ; idem, «A Further Survey of Female Delinquents

Undergoing Borstal Training», 4 B.J.D. 265 (1954).

(160)

See e.g. D. Miller, «A Model of an Institution for Treating Adolescent Delin-

quent Boys» in H.J. Klare, supra, n. 43.

See also T. Parker, The Frying Pan (London

Hutchinson, 1970) for an excellent work on a psychiatric penal institution in Britain.

(Most, if not all, criminologists will agree that some offenders represent such a threat

to society that they must be held in custody, but this is for security purposes, not

rehabilitation).

(161) See my papers, «Socialist Penology»,

«Developments in Criminology», Sec-

tion III B.

(162) The Dutch system appear

to be exceptional in this regard ; see E

Stock-

dale, The

ourt and the Offender (London : Gollancz, 1967).

He describes the Dutch

system, inter alia, where over-

crowding of penal institutions is not a problem, most

offenders being released into t

he community, mainly on pro

on.

(163) This is the kind of ¢

Centres in Tanzania.

riticism which might be levelled at the Re-Settlement

fenders and persons th

These centres have been established to deal with habitual of-

tegories).

It could be

ought to be engaged in witchcraft (as well as certain other ca-

argued that to put all of the offenders of on

e type together

will make reform impossible; on the other hand, the argument ha

S

een put for-

ward that to spread alleged «witches» amongst the various centres will

cause subs-

tantial social conflict throughout the scheme.

(164) For reports and other materials concer

and young offenders in England and Wales,

concerning whom the c¢

ning special treatment for juveniles

is most extensively applied, see Report of the Advisor:

y Council o,

ontamination theory

Offenders

The Treatment of Young Offenders (London

n_ the Treatment of

residential Treatment of Offenders Under 21 (London

H.M.S.0., 1959) ; idem, Non-

White Paper, Children in Trouble (London

HM.S.0., Cmnd.

1191,

1960) ;

and Young Persons Act, 1969. See also the

HM.S.0., Cmnd. 3602, 1965) ;

The Children

per dealing with Scotland : Report of the C

ommittee on Ch

much more radical report

and White Pa-

ildren and Young Persons

(Scotland) (Edinburgh : H.M.S.O., Cmnd. 2308, 1964) ; Wh

ite Paper, Social Work and’

the Community (Edinburgh : H.M.S.0., Cmnd. 3065, 1966

.

(165) The Tanzania Prison Service, like those in mos

a policy of classification and segregation, to the extent tha

t other countries, maintains.

and financial considerations allow.

See the discussion of

t facilities, human resources

th

former Prison Commissioner, O.K. Rugimbana, «Various Aspe

Cts»

e policy in action by the.

(166) Little has been written concerning bureaucrac

Y oand penal systems; one

of the few attempts to deal with the subject is that

of G. Rose,

«Administrative Conse-

quences of Penal Objectives» in Halmos (ed), Soc. R

ev. Mono. No. 9, 211.

See also my

paper, «Social Defence Planni:

ng, reviewing and integrating policie

s in the field of so-

cial defence.

See generally

on bureaucracy, R.K. Merton et al, R

eader in Bureaucracy

(New York : Free Press,

1967) ; N.P

Mouzelis, Organization and

Bureaucracy (London

Routledge and Kegan Paul,

e.g. Modern Organisa-.

tions (N.Y. : Prentice Hall,

1967).: and the work of A. Etzioni,

= 139; —

(167) See e.g. H. Weeks, Youthful Offenders at Highfields (Ann Arbor

U. of

Michigan Press, 1958).

162 ; K. Bernsten and K.O. Christionsen, «A Re-

(168) See E. Stockdale, supra, n.

i

socialization Experiment With Short-Term

o

ffenders» in K.O. Christionsen, Scandinavian

Studies in Criminology, Vol.

1 (London Tavistock, 1965)

(Short-Term prisoners in cer-

tain Danish prisons) ; J.P. Conrad, supra, n. 106 (UK. Netherlands, Scandinavia, France,

US.S.R); M. Macaulay, supra, n. 47; N. Goodman, supra, n. 47; ].B. McWhinnie,

Denmark—A New Look at Crime (London

Inst. for the Study and Treatment of Offen-

ders, 1961) ; K. Wardrop, Holland—A New Look at Crime (London

Inst, for the Study

and Treatment of Offenders, 1962).

See also D.R. Cressey and W. Krassowski, «Inmate

prus Juvenile Offenders», 3 B.J. Crim. 47 (1962).

And see the following general sur-

veys; United Nations, The Young Offender (New York :

U.N. ST-SOA-SD-11) ;

Council

Organization and Anomie in American Prisons and Sovie

t Labour Campsy,

5 Soc. Probs.

217 (1957) ; W. Clifford, «The Lapithos Reform School :

An Internsive Follow-up of Cy-

of Europe, Short Term Methods of Treatment for Young Offenders (Strasbourg, 1967) ;

idem, Seminar Organized for Specialists in the Re-education of Young Offenders (Stras-

bourg, 1967), Vols I an:

(169) See e.g. D.P. Jewell, supra, n. 106 (Mexico) ; B.K. Bhattacharya, Juvenile

Sarker and Sons, 1962) ; 'W.J.H. Sprott, «Prisons in

Delinquency and Borstals (Calcutta

China», 8 Howard J. 267 (1953) ; R.S.W. Pollard, «Prisons in China» (1956) Crim. 16935

740 ; Van Shalwijk, «Work Colonies in the Union of South African, 1 Int. Rev. Cr. Pol.

South

49 (United Nations, 1952) ; H. Venter, The South African Prison System (Pretoria

Africa Information Service( Fact

aper, No. 68, 1959).

(170) R.G. Hood, Borstal Re-Assessed (London

Heinemann, 1966) ; idem, Homeless

Borstal Boys (London

Bell, 191

See also E. Stratta, The Education of Borstal Boys

ondon

Routledge, 1970) ; A.G. Rose, Five Hundred Borstal Boys (Oxford : Blackwell,

1954) ; H. Monnheim and L.T. Wilkins, Prediction Methods in Relation to Borstal Trai-

ning (London

H.M.S.0., 1955) ; T.C.N. Gibbens and J.E

Prince, «The Results of Bors-

tal Training» in Halmos (ed).

Soc. Rev. Mono. No. 9, 227 ; (Oxford : Oxford U. Press,

(171) A.G. Rose, Schools for Young Offenders (London

Tavistock, 1967) see also

H

Jones, «The Approved Schol

A Theoretical

el» in Halmos, op. cit.,

P

J. Gittins, Approved School Boys (London H.M.S.O., 1952) ; J. Carlebach, Caring for

Chil-

dren in Trouble (London

Routledge, 1970).

(172) R.F. Sparks and R.G. Hood (ed), The Residential Treatment of Disturbed

and Delinquent Boys (Cambridge

Inst. of Criminology,

(173) F.H. McClintock, Attendance Centres (London

Macmillan,

1961).

See also

R. Braithwaite, «Attendance Centres for Young Offenders», 2 B.J. Del. 242 (1952).

(174) A. Dunlop and S. McCabe, Detention Centres (London

Routledge,

1965).

See also

anks, «Borstal, Prison and Detention Centre» in H. Klare (ed.), supra,

n. 43; Report of the Advisory Council on the Penal System, Detention Centres (Lon-

don

H.M.S.0., 1970).

(175) N. Wlaker, Crime and Punishment in Britain (Edinburgh : Edinb. Univ. Press,

1965

1960

),; see also R.G. Andry, Delinquency and Parental Pathology (London : Methuen,

(176)

For an interesting comment concerning the possible

beneficial

deterrent

effect of a remand in custody for certain types of offenders, see D.J]. West an

]

Bearcroft, «The Choice of Bail or Custody for Offenders Remanded for a Psychiatric

Report», 6 Int. J. of Soc. Psych. 34 (1960). The authors comment, «These observations

(that first time sex offenders, remanded in custody tended to have lower reconviction

rates than those remanded on bail) are in conformity with the hypothesis that there

is a class of sex offender who, on first conviction, may

e deterred from subsequent

appearance on Court as a result of the experience of remand in custody.»

(177) 1.E. Hall Williams, supra, n. 49.

(178) Boehringer, Developments in Criminology, Section III, a; see also the 1961

Criminal Law Review for the following articles

]

Silvey,

«The

Criminal Law and

Public Opinion», p. 349; C. Williams, «The Criminal Law and Public Opinion

Some

Police Reactions», p. 359 ; D. Napley, «The Criminal Law and Public Opinion

A Soli-

citor's Viewpoint» ; B. Wilson, «Mass-media and the Public Attitude to Crime» p. 376 ;

‘W.]. Bolt, «Public Opinion and Law Reform», p. 385. There are several books on the

English experiences of considerable relevance and value, see e.g. G. Rose, The Strug-

le for Penal Reform (London

Tavistock, 1962) ; E.O. Tuttle, The Crusade Against Capi-

tal Punishment in Great Britain (London

Tavistock, 1963), and Sington and Playfair,

8

supra, n. 42, chap.

And see an exploratory research study by B. Kutschinsky,

«Knowledge and Attitudes regarding Legal Phenomena in Denmark» in N. Christie (ed.),

Scandinavian Studies in Criminology (London

Tavistock Publications, 1968), vol. 2, 125;

see dlso, idem, «Law and education

Some aspects of Scandinavian Studies into ‘the

general sense of justice’», 10 Acta Sociologica 21 (1966) ; K. Makela, «Public sense of

justice and judicial practice, «id., p.

. Aubert, «Some Social Functions of Legis-

lation», id., p. 98 ; N. Christy, «Changes in Penal Values», in N. Christie, op. cit., p. 161 ;

T. Morris, «The Social Tolerance of Crime» in Klare (ed.), supra, n.

(179) J.E. Hall Williams, supra, n. 49. See also ].C. Spencer, «Problems in Tran-

sition

from Prison to Therapeutic Community» in Halmos (ed), Soc. Rev. Mono., No. 9,

— 140 —

13; G. Trasler, «The Social Relations of Persistent Offenders», id., 87. And see va-

rious articles in Johnston, Savitz and Wolfgang, The Sociology of Punishment and Cor-

rection (N.Y. : Wiley, 1963), Sections II, V (to a considerable extent these are, in fact,

psychologically oriented studies).

(180) I have attempted to set up some guidelines for further research (see «Deve-

lopments in Criminology») ; to outline some of the implications of penal treatment in

Socialist-oriented Africa («Socialist Penology») and have called attention to the need for

careful planning and integration of policy and techniques of all social defence agen-

cies («Social Defence Planning»).

(181) See Boehringer, «Developments in Criminology», Section V. Note that al-

though one of the reforms introduced by the Criminal Justice Act, 1967 (England and

Wales) was to encourage more liberal use of bail, there was an increase of 3000 per-

sons remanded in custody who were not sentenced to imprisonment, Report of the Pri-

son Department (1968).

Statistical Tables (London

H.M.S.

’

1969).

In East Africa

a similar general pattern exists, see Appendix

see also Boehringer, Developments in

Criminology, Section V.

In East Africa, statutory provisions relating to bail are found

mainly in the Criminal Procedure Codes (see e.g. Tanzamia, Official Secrets Act, Cap.

(19

a?':d see S. Huber, «Bail under the Official and other Secrets Act», 1 E.A.L.R. 91

In

182)

See Boehringer, «Developments in Criminology», Section IV (Statistics).

Tanzania, of 76,305 persons committed in custody, only 40,111 were subsequently sen-

tenced to imprisonment ; thus it would appear that considerable leeway exists for redu-

1

cin

the load on the prison service by a more liberal use of

ee generall

Sutherland and Cressey, Principles of Criminology, 6th ed., chap.

18.

See also

4

Freidman, Detention Before Trial (Toronto

Univ. of Toronto Press, 1969) ; D. Brown,

«Bail in Scotland» (1968), Crim. L. Rev. 70; ]. Bottomley, «The Granting of Bail : Prin-

ciples and Practice», 31 M.L.R. 40 (1968) ; M

Zander, «Bail : A Re-Appraisal» (1967)

Crim. L. Rev. 25 et seq. (Parts I, II, IIlI) ; C. Foote, «The Bail System and Equal Jus-

ticen, 23 Fed. Prob. 43 (1959) (also printed in Johnston, Savitz and Wolfgang, Sociology

of Punishment and Correction, supra, n. 179, p. 18) ; J.B. Egan, «Bdil in Crimin

Law»

(1959) Crim. L.R. 705.

See also Note, «Preventive Detention before Trial» 79 Harv. L.

Rev.

1489 (1966).

(183) See Boehringer, «Developments in Criminology», Section C. 1

Read, «Some

Legal Problems in East

frica»n, 2 E.A.L.J. 39 at 58 (1966) ; Report of the Interdepart-

mental Committee on the Business of the Courts (London

H.M.S5.0., Cmnd. 1289, 1961) ;

J.E. Hall Williams, Sentencing in Transition», in J. Grygier (ed.), Criminology in Tran-

sition (London

Tavistock, 1965) ; F.V. Jarvis, «Inquiry before Sentence», id.

(184) See R.G. Hood, Sentencing in Magistrates Courts (London

Stevens, 1962) ;

R.F. Sparks, «Sentencing b

agistrates

Some Facts of Live» in Halmos (ed.)

ocC.

Rev. Mono.

i

reen, Judicial Attitudes in Sentencing (London : Macmillan, 1961),:

H. Mannheim et al. «Magisterial Policy in the London Juvenile Courts», 8 B.].D

13,

113 (1957).

Decisions prior to conviction can make a significant difference as well ;

tal examination appears less likely to be recommended for mental treatment than does

thus it has been shown that in England a defendant remanded in custody for a men-

one who was remanded on badil,

see D.J. West and ].S. Bearcroft,

«The Choice

of Bail or Custody for Offenders Remanded for a Psychiatric Reports, 6 Int. J. of Soc.

Psych. 34 (1960) ; and see R.F.

parks, «The Decision to Remand for Mental Examina-

tion», 6 B.]. Crim. 6 (1966).

(185) With regard to England and Wales, see the three White Papers, Penal Prac-

645, 1959) ;

tice in a Changing Society : Aspects of Future Development (London

H

S

'mnd.

Cmnd.

’The

War Against Crime in England and Wales, 1959-64 (London

HM.5.0.,

) ; People in Prison (London

H.M.S.0., Cmnd., 4214, 1969) ; see also

Advisory Council on the Treatment of Offenders, Report on Alternatives to Short Terms

of Imprisonment (London

H.M.S.0.,

1957).

And see Council of Europe,

«Suspended

Sentence, Probation and other Alternatives to Prison Sentences»

(Strasbourg,

1966) ;

Bowden, supra, n.

Aspects of the Prison System in Tanzanio» (Dar-es-Salaam

(186) From Appendix to a paper issued by the Tanzania Prison Service, «Various

meo, 1967).

Tanz. Prison Service, mi-

See Appendix of present paper for additional d.

ata.

(187) Supra, n. 162, p. 100.

(188)

See Tanganyika, Criminal Procedur:

e Code, Cap. 20, Section 222 ; Magistrates

some available from British sources.

Courts Act, 1963, Sections 14, 15. Very little

work has been done on this,

ut there is

See E. Gibs

on, Time Spent Awaiting Trial (London :

Closed».

H.M.S.O., 1960).

See also the disturbing article

2/

ies «Why Risley Should be

New Society, 8 jan. 1970, which describes a rema

nd centre with a high rate

of suicides. There is oan interesting study relating to the

use of bail and remand in

custody with reference to mental examinations, in whic

the researchers looked at

factors influencing the magistrates, see D.J]. West and J.S. B

earcroft, supra, n. 184 ; see

also R.F. Sparks, id. An interestin

measure which might be

considered «post—sgntence

bail» is used in Sweden; if an offender (presumably non-viol

lent, non-serious) is sen-

tenced to prison but the prison system is over-

loaded, the offender is asked to delay his

confinement until sufficient accomodation beco:

mes available, see report in International

Herald Tribune, 21 Nov.

(189)

There were an additional 28 imprisoned for debt.

— 141 —

(190)

R.G. Andry, The Short Term Prisoner (London

Tavistock, 1963).

(191)

Report of the Advisory Council on the Treatment of Offenders, Alternatives

to Short Term Imprisonment (London

H.M.S.O., 1957) ; United Nations, Short

‘erm Impri-

sonment (London

H.M.S.

1960 ; A/Conf. 17/5).

See also, Berntsen and Christiansen,

supra, n. 168. And see D.]. West, The Habitual Prisoner (London

Macmillan, 1963) for

a discussion of the type of offender who is often sentenced to a short term only. The

British Criminal Justice Act, 1967, attempted to lessen the number of short-term sentences,

e.g. by allowing suspended sentences, and also decreasing the power of magistrates

to give sentences of six months or less ; see People in Prison, supra, n. 188, 14-17.

(192)

O.K. Rugimbana, «Various Aspects».

(193)

See e.g. People in Prison, supra, n

188, para. 90-119, 253-8.

The Minister

of State at the Home Office (U.K.) was recently quoted as saying that «The Prison

Department was examining the scope for broadening the range of offenders dealt with

under various forms of supervision in the Community», N. Fowler, «Prisoners Total

Tops 37,000»,

The Times,

14 March 1970.

See also Johnston, Savitz and Wolfgang,

supra, n. 179, Section V.

(194)

Supra, n.

162, p

100. See the Annual Reports of the Probation Service,

Kenya. See generally United Nations, Practical Results and financial aspects of adult

probation

in ~selected countries (ST/SOA/SD3,

1954) ;

D

arsh,

«The Probation

Service», An Assessment of its Organisation and Personnel», in Halmos (ed), Soc. Rev.

Mono Ne 9, 201; Report of the Departmental Committee on the Probation Service

(London

H.M.S.0., Cmnd. 1650, 1962) ; Report of the A.C.T.O., The Organisation of

After-Care (London : H.M.S.0., 1963) ; idem, Alternatives to Short Terms of Imprisonment

(London

H.M.S.O.,

1951).

See also Probation Research

A Preliminary Report

(London

H.M.S.O., 1966) ; The Use of the Jesnes Inventory on a sample of British

Probationers (London : H.M.S.

, 1967).

See now the disappointing results of research

in England, Probationers in their Social Environment (London : H.M.S.O., 1969).

(195) Report

of

the

Commissioner

for

Social

Welfare,

1967

(Dar-es-Salam,

Government Printer).

(196)

See T.E.]. Mwangosi, «Probation Services in Tanzania», 2 E.A.L.J. 29 (1966) ;

see also Annual Reports of the Probation Service, 1961, 1962 ; Read, « Kenya, Tanzania

and Uganda» in Milner (ed.), African Penal Systems.

(197) Turnbladh, supra, n. 42, p. 115.

(198)

It is being organized and directed by a team from Canada, under the

general auspices of the

(199)

Turnbladh, supra, n. 42, p. 116.

K. Saikwa,

«An Approach

to Penal Administration

in East

Africa»,

2 EAI%UIO 25

(1966).

(201) See some further comments on this question in Boehringer, «Developments

in Criminology», Section II F, G.

(202)

Respectively the national women's organization (U.W.T.) ; the national trade

union (NUTA) ; the party youth orgamisation (TYL) and the party (TANU),

(203)

See M. MacCaulay, supra, n. 47.

(204)

See Stockddle,

supra,

n

162, p.

100 ;

see also International Prisoners’

Aid Association, «The Role and Potential Value of Volunteers in Social Defence» in 24

Int. Rev. Cr. Pol. 69 (1966) ; and see the recently published Aves Report, The Voluntary

Worker in the Social Services (London : Allen and Unwin, 1970).

And for some interesting

developments with regard to ex-prisoner volunteers, see two articles concerned with

a new voluntary scheme in Britain whereby ex-offenders (and others) will combine

forces to «provide machinery for the immediate psychological and practical relief of

victims by channeling many ex-prisoners’ wishes to make more direct and individua

ry

amends for offences», ]. Tweedie, « Criminals May Help Victims» ; «Help from ex-

pri-

soners», both in The Guardian, 19 Jan. 1970.

(205) See,

e.g. Tanganyika,

Crim, Pros Code,

Sections 308-10. Recently,

an

additional scheme has been put into effect whereby the Prisons Dept., supplies the

Police Force with the names of all ex-prisoners (rather than just those recidivists quali-

fying for superdivision) for the purposes of «ensuring that they participate in nation-

building schemes»,

but also to «help determine

citizens» according to Mr.

Mchauru,

if ex-prisoners changed into good

Principal Secretary, Ministry of Home Affairs,

The Standard, 29 Aug. 1969.

(206)

Tanganyika, Penal Code, Cap. 16, Sections 38, 38 (a), 38 (b).

(207)

Uganda, Crim. Proc. Code, Section 318.

(208)

Tanganyika, Penal Code, Cap. 16, Sections 38, 38 (a), 38 (b).

Tanganyika, Penal Code, Cap. 16, Section 33 ; Uganda, Crim. Proc. Code,

Section 319 ; Kenya, Penal Code Section 33.

(210)

See Tanzania,

Crim, Proc.

Code

(Cap. 20),

Section 294 A. See also

Council of Europe, supra, n.

184. Walker refers to the suspended sentence as a

«focused deterrent».

— 142 —

(211) People in Prison, supra, n

185. For a discussion of suspended sentence

and similar measures in an Eastern European country, see S.

asz,

«Some Problems

of Principle of Application of the Hungarian Criminal Code in Practice (Act of 1961)»

(1966, No. 2) Hungarian Law

ev. 19; see also G. Horgosi, «Principles of the Regulation

of the Execution of Sentences» (1966, No. 2) Hungarian

1; Jaszai,

«Some New

Legal Institutions in the Criminal Code» (1963, No. 2), Hungarian L.R. 20. Although the

in

suspended sentence is now use

of

ngland an

es, an earlier report rejected the

1957

idea,

see Report

A.C.T.O., Alternatives

to short Terms of Imprisonment,

(Appendix D).

(212)

See ].S. Read, «Some Legal Problems in East Africa, 2 E.A.L.J. 55-6 (1966) ;

idem, «Kenya,

anzania and Uganda» in Milner (ed.), supra, n

196,

148-9 ; Bowden,

supra,

n

104 ; Boehringer, «Developments in Criminology», Section III, B, 4. See the

Report of the Legislative Council Committee on the Question of Imprisonment (London

H

’

1934, un-nu

ered ; Dar-es-Salaam, Facul

of Law) which recommended

adoption of extra-mural labour.

And see the Annuai

Report of the Tanzania Prison

Service (esp. 1961) for comments on the scheme.

(213)

See Read, op. cit. (Milner), p. 148. And see the Tanzamia Prisons Ordinance,

Cap. 58, Section 87.

(214) Tanzamia Penal Code, Cap. 16, Section 116 (a).

(215) See the exploratory paper of Bowden, supra, n. 104, and one of the best

treatments of prison labour

"

ased on empirical research, M.H. Cooper and R.D.

’

«Social and Economic Problems of Prisoners’ Work» in Halmos (ed.), Soc. Rev. Mono, 145.

See also Boehringer, «Developments in Criminology», Section III, B, 4; M. Lopez-Rey,

«Some Considerations on the Character and Organisation of Prison Labour», 49 J. Crim. L.,

Crim., and Pol. Soc. 26 (1958).

And see Report of the Advisory Council on the Employ-

ment of Prisoners, The Organisation of Work for Prisoners (London

H.M.S.

, 1964 ;

idem, Work for Prisoners (London

H.M.S.O., 1961) ; White Paper, People in Prison,

p. 25-33 ; United Nations, Dept. of Social and Eco. Affairs, Report of the Ist U.N. Congress

on the Prevention and Treatment of Offenders, Prison Labour (Geneva, 1955) ; idem, The

Integration of Prison Labour with the National Economy including the Remuneration of

Prisoners (London, 1960), both published by the U.N. Dept. or Economic and Social

Affairs. And see

rmanov, «The Criminal Code of the Soviet Union and the

Correctional Labour Services in the U.S.S.R. : a short survey», 3

ean, J. Corrections,

170 (1961) ; P. Cornil, «Prison Industry and Labour», 3 Can. ]J. Corrections 238 (1961).

(216)

And see the comments

See Bowden, supra, n

104 ; Lopez-Rey, op. cit.

of a recidivist in Tony Parker, A Man of Good Abilities (London

Hutchinson, 1967).

(217) _See Boehringer, «Developments in Criminology», Section III, B, 4; idem,

«Socialist Penology».

(218) See S.E. Grupp, «Work Release and the Misdemeanant», 29 Federal Pro-

bation 6 (June 1965) (reprinted in H. Gold and F.R. Scarpitti (eds), Combatting Social

Problems (New

ork

Holt, Rinehart and Winston, 1967) (at 332). See also Bowden,

supra, n.

(219) Walker, supra, n. 175, p. 175.

(220)

See Stockdale, supra, n. 162, 93 ff.

(221)

See my discussion, «Developments in Criminology», Section III, B, 4.

(222) Read, in Milner (ed.), African Penal Systems, p.

155. For the history of

the development of crimin

procedure in East Africa, see D. Brown, Criminal Procedure

in Uganda and Kenya (London

: Sweet and Maxwell, 1965) ; H.F. Morris and ].S. Read,

Uganda (London

Stevens, 1966).

or a briet discussion of the historical development

of the East African substantive penal law, see ].S. Read, «Criminal Law in the Africa

of

oday and Tomorrow» (1963) J.A.L. 5.

(223)

See Tanganyika, Crim. Proc. Code, Section 134 ; Kenya,

Crim. Proc. Code,

Section 176 ; Uganda,

rim.

c. Code, Section 177. Some

problems of this type of

legislation are considered in Rep. v. Said Ibrahim (1960),

E.A. 1058.

(224)

Northern Nigeria, Crim. Proc.

Code,

Section 339. See Richardson and

Williams, The Criminal Procedure Code of Northern Nigeria (London

Sweet and

Maxwell), 206-7.

(225)

Indian Code of Crim. Poc., Section 345. See Mitra, The Code of Criminal

Procedure (India,

1898) (Calcutta

Eastern Law House Private Ltd., 1967), 439-57 ;

see also

ingh and M.P. Bhatnagar, Sokoni’s The Code of Criminal Procedure

(Allahabad

Law Book Co., 16th ed.,

1967), vol. 3. And note that composition, if not

done strictly according to the law,

puts one in danger of prosecution, in some cases

for felony, see A.N. Gledhill, Th

e Penal Codes of N. Nigeria and the Sudan (London

Sweet and Maxwell, 1963).

(226)

Milner, ibid.

See Junod, supra, n

13 ; Katende, supra, n

15; Driberg, supra, n. 58;

(227) Read says that it is «rarely invoked» in his articl

p. 154 ; nevertheless, it has become much more widely used

e in Milner, supra, n. 196,

particularly because the Minimum Sentence Act,

in Tanzania in recent years,

does exist; since most prosecutions under that Ac

t concern

1963, makes explicit that the power

very appropriate sanction, easily related to the offence and

the theft of money, it is a

therefore frequently invoked.

— 143 —

(Katende, supra, n. 15, also overlookeed the effect of the Minimum Sentence Act in

increasing the use of compensation by the African judiciary, at least in Tanzania).

(228)

Read, op. cit.

(229)

Tanganyika, Crim. Proc. Code, Section 176.

(230)

Ibid., Section 178 (3).

(231) Se.e discussi

ons by Katende, supra, n

15;

Milner,

supra,

n. 58;

Read,

supra,

n

;

unoaq,

«African Penal Conceptions

and

the

Emancipation

of African States», 1| Geneva-Africa 156 (1962) ; see generally the materials cited n. 13.

There has been some agitation in Britain in the last few years, to some extent stirred

u

by the introduction of the scheme for state compensation to victims of violence

(supra, n. 13) ; see for example, C.H. Rolph, «Making the Criminal Pay», New Statesman,

8 April 1966 ; a report on a memorandum by the Law Society to the Royal Commission

on the penal system «Bankruptcy scheme to make the

riminal Pay»,

The Times,

30 March 1966, and an editorial «Making Crime Bankrupts, The Times, 31 March 1966.

(232)

Tanzania, Crim. Proc. Code (Cap. 20), Section 178 (1) ; Kenya, Crim. Proc.

Code (Cap. 75), Section 175; Uganda,

rim. Proc.

ode

ap.

), Section 176. See

D. Brown, supra, n.

'

and see Mahar Singh v. R.,

1936-51, 6 Uganda

l;

(1936-51), Meha Singh v. R., 6 U.L.R. 265, where Section 176 was considered, and R.

v. Godinho (1950),

17 E.A.C.A. 132, where the East African Court of Appeal stated

that the imposition of a fine so as to provide a fund out of which compensation could be

paid «has always been discouraged in East Africa». Note that the opposite side of the

coin is that a complainant may be called upon to pay compensation for bringing a

frivolous and vexatious charge, e.g. Tanzenia, Cap. 20, Section 175.

(233) Junod, supra, n. 13, p. 32-3.

(234)

See materials cited, supra, n. 13

(235)

See discussions by Katende, supra, n

15, and Milner, supra, n. 58.

(236)

Junod, supra, n. 230.

which

is

(237)

Tanganyika, Crim. Proc. Code,

Section 173. As can forleiture,

provided for under a number of ordinances, see e.g. in Tanzania, Arms and Ammunition,

ap. 223 ;

Intoxicating Liquor,

Cap. 3

; Gambling,

Cap.

19;

Fauna Conservation,

Cap. 302 ; see generally J.S.R. Cole and W. N. Denison, Tanganyika (London

Stevens,

1964).

(238)

See Harbans Singh v. R. (1958), E.A. 199.

(239) Tanganyika, Criminal Proc. Code, Section 179-80.

There is a provision for

compensation in the Minimum Sentence Act, 1963, Section 6, § 1, but it does not provide

specifically for restitution.

(240) Tanganyika, Penal Code, Section 29 is the basic legislation.

(241)

Read, 2 E.A.LJ. 53 (1966) ; idem, in Milner, supra, n. 196, p. 122.

(242) Walker, supra, n

175, p. 143.

(243)

Ibid., 241-2 ; 252-3 ; 328. See also P. Tornudd, «The Preventive Effect of Fines

for Drunkenness—A Controlled Experiment» in Christie (ed.), Scandinavian Studies in

Criminology, vol. 2 (London

Tavistock, 1968).

(244) Walker, op. cit., p. 252.

245) For an early assessment of this aspect of the Act, see the White Paper,

People in Prison, p. 16-17,

3

(246) See Walker, op. cit.,, p. 164.

(247) Sethi v. R. (1962), E.A. 523. See Milner, supra, n. 58 and see Read, 2 E.A.

L.J. at 57 where he discusses collective punishment in Kenya, permissible under certain

special circumstances, see e.g. Stock and Produce Theft Act, Cap.

248) This would seem to have been at least in part the basis for the court's

decision in the Kenya case; ond see Milner, supra, n. 58 at 182, where he describes

the possible chain reaction which might result where collective punishment is invoked,

inducing those sanctioned to attempt to retaliate.

This sort of reaction is one practical

reason why collective punishment must be considered « two-edge sword.

For a

discussion of the Collective Punishment Ordinances in Tanzamia (all inherited from the

colonial regime), see ].S.R. Cole and W.N. Denison, supra, n. 236.

(249) Milner, supra, n. 58.

(250) P. Ali, «Ideological Commitment and the Judiciary», 36 Transition 47 (1968);

1

see also Milner, supra, n.

+ P

(251) See Mohamed Juma v. R. (1942), 1 T.L.R. (R), 257, citing

Court Cir-

cular No. 3 of 1938. See also R. v. Mureto Munyoki (1

944) 2

0 K.L.R

I%if’h

where it is

stated that capacity to pay a fine ought to be considered.

od

In Belgium, a new ap-

proach ot the use of fines has been embodied in a recent draft bill which would

enable courts to vary fines according to the offender’s income, reported in The Sunday

Times, 11 Jon. 1970,

(252) Rookes v. Barnard (1964) A.C. 1129 ; (1964) 1 Lloyd’'s Rep. 28 (H.L.).

— 144 —

(253) See Boehringer, «Developments in Criminology», Section II L ; «Socialist Peno-

logy» ; «The Traffic Problem as a crime Problem (Dar-es-

aam : Faculty of Law, mi-

meo,

1

And see recommendations of similar type recently put forward in England

by the Law Society, reported in The Times, 21 Feb. 1970.

(254) See Tanzania Penal Code, Cap. 16, Sections 25-26. Capital Punishment

in East Africa is mainly used for murder, although in Ugenda (since 1968) it is used

compulsorily where there is a conviction of robbery with violence (see my discussion

of robbery with violence in East Africa in Developments in Criminology, Section 11,0).

Capital punishment also applies to treason and certain forms of piracy.

e punishment

is used comparatively frequently, thus in Tanzania, there were 12 executions in 1

(of course the Tanzania murder rate is fairly high, normally over 600 convictions per

year plus a large number in which no conviction is achieved, for any num

r of

reasons).

In traditional society banishment was used for serious or repeated offences

(see Driberg, supra, n. 58 ; Milner, ibid.) and in a sense was a slower kind of capital

punishment in that the offender would be likely to be eaten b

animals, killed by

enemies or taken prisoner and used as a slave.

Banishment (an:

the modern variant

of transportation)

still finds

its place in the

East African penal system ;

see the

comprehensive review of the legislation in J.S.R. Cole and W.N. Denison, supra, n. 236,

260-62.

It is interesting to note that banishment is used in dedling with cattle theft

in Sardinia, and whit the Mdfia in Sicily, see The Times, 14 Feb. 1970.

(255)

See e. g. Tanzania Penal Code, Cap. 16, Sections 25-28 ; Corporal Punishment

Ordinance, Cap. 1

; Minimum Sentences Act, 1963, Cap.

(256)

See Boehringer,

Developments

in Criminology,

Section

1I,

P

wherein

corporal punishment is discussed in the context of the Minimum Sentence Act, Tanzamia.

See also my article on corporal punishment, « Strokes : Are They Way to End Crime »,

The Standard, 5 February 1970. See also the view from inside the prison service supplied

in a useful article by E.L. Manyama, « Living Down A Brutal Image », The Standard,

13 Feb. 1970.

257)

Thus offenders under the Tanzania Minimum Sentence Act, a high proportion

of criminal offenders in Tanzamia, are normally given strokes and prison.

(258) On parole generally, see e.g. Sutherland and Cressey, Principles of Cri-

een in effect

minology, or any other standard American text.

The system has only

in England and Wales since 1968, so there has been ins

icient time to make any

thorough evaluation ; but see People in Prison, para. 114-119. And see the first Report

of the Parole Board (London

H.M.S.O. 429, 1968).

See also the following news:

T

reports

« Hunt Urges More Gaol Paroles », The Times,

14 Feb.

1970 (in which the

chairman of the Parole Board is said to have reported favourably on the results of

parole thus far

only 5 % of those

led had «failed» and that it «had

n such a

success that

it should be extende

gradually to higher risk prisoners»).

The first

research, published in Probation (March, 1970) indicated that 6 9 failed during the

first 2 years of the scheme, either by committing a new offence or breaking a condition

of their parole.

See generally D. Glaser, supra, n. 12. See also K. Hawkins, Parole

A select Bibliography with Especial Reference to the American Experience (Cambridge

Inst. of Criminology, 1969).

259)

See e.g. Tanzania Prisons Ordinance, Cap. 58, Section 49 ; under Section 50

the President of Tanzania may,

upon recommendation of

the

ison

ommissioner,

«grant a further remission on the grounds of exceptional merit, permanent ill-health

or any other ground».

(260)

See e.g. Kenya Prisons Act, 1963 (Cap. 90), Section 49.

(261) Ibid., see also Read in Milner, supra, n. 196, p. 140.

(262) In Tanzania After-care is the responsibility of the Probation Service ;

however, there is in fact little or no attempt to provide after-care on any but the most

sporadic basis, due to a lack of trained personnel, and financial resources. Released

offenders are normally supplied with a small gratuity and travel voucher, and in some

cases craftsmen receive a set of tools.

In Kenya, Read states in Milner op. cit., 141,

«the prisoners’ Aid Association is active in addition to the After-Care and -welfare

Officers established within the Prison Service itself.

exist in every prison.

The Uganda Discharge Prisoner:

s’ Aid Society assists the district

Reception and discharge Boards

committees ‘which were already in existence; trade testing, the provision of tools on

release and the construction of a hostel were among its first taskss,

(263) See Boehringer, «Developments in Criminology», Section 10 R ey 0

, «The sen-

tencing Process».

(264)

Junod, supra, n. 230.

(265) See discussion, supra, n. 28-31. See also Costa, supra, n. 119

(266) See Boehringer, «Developments in Criminology», Section 1006 (05|

(267) See e.g. 2 E.AL.

J. 51-52 (1966). For can earlier

discussion of problems

relating to sanctions, see C.H. Bird, «Dead Legdlism in place

of live justice, plea for

punishments to

frican conditions»,

26,

East Africa and Rh

odesia 1026 (No.

20 April 1950).

33,

— 145 —

(268) Milner, supra, n. 58, See also S.F. Moore, «Deterrents to Incest» (1960),

some Bantu Tribes of East

Am. Anthoro

logist

1;

C

Dundas «Native Laws o

Africa», 51,

. Royal Anthr. Inst. 217 (1921).

(269) Tanner, «Cattle Theft in Musoma, 1958-59», Tanzania Notes and Records 31

«

Enforcement by Communal Action in Sukumaland, Tanganyika

(1966) ;

idem,

«The Masai Penal Coden,

Territory», 7 J.A.A,

159 (1955).

See also R.A.]. Maguire,

. Arican Affairs 12 (

1928) ; and see R.A. LeVine, «Traditional Gusii Sanctions, Perso-

nality and Chi

earing

A Preliminary Report» (Conference paper, M.I. Sr, 1956) as

well as O.F. Raum, Chaga Childhood (London

Oxford U. Press, 1940), for accounts

of sanctions against children.

For more general accounts, see A.T. Culwick, Ubena of

the Rivers (London

Allen and Unwin,

1935) oand G.

Culwick,

«Religious and

Economic Sanctions in a Bentu Tribe» (First International Congress of Anthropological and

Ethnological Sciences, London, 1

(270) Supra, n. 37, 123-127.

(271) Thus the use of different sanctions in different parts of a country has

intriguing possibilities,

particularly in countries where the population is relatively

immobile, where the way of life in different areas is fundamentally dissimilar, and

where the Government is interested, and willing, to experiment while reforming. See

Read’s discussion of the Uganda Government’'s attempt to solve a local problem by

enacting special rules of procedure and evidence in the Karmoja District, 2 E.AL.J. 39,

at 50 (1966) ;

see also Seidman, Sourcebook of the Criminal Law of Africa,

60-65 ;

C. Thompson, «The Sources of Law ‘in the New Nations of Africa and Law

A Case

the Republic of Sudan» in T.W. Hutchinson (ed.),

Africa and Law

Study from

U

O

(Madison

‘Wisc. Press,

1968).

Similar problems arose in Eastern European

countries after World War II, especially in the newly formed federation of Yugoslavia

where there were vast regional differences in the degree of sophistication, in terms

of adaptation to modern technological society.

I have been told that the Government,

in order to cope with the problem of unfamiliarity ‘with the new laws, made speci

dispensation for peoples living in remote areas, tending to negate the generally held

principle that ignorance of the law is no defence.

Unfortunately, I have not been able

to confirm that such was the effect of the Yugoslav law, but it suggests an innovation

which is worth considering. For a somewhat dated, but useful discussion of Yugoslav

criminal law, see R.C. Donnelly, «The New Yugoslav Criminal Code», 61 Yale L.J. 510

(1952).

Donnelly does mention that article 10 o

the Code (not reproduced) does allow

a reduction or even complete remission of punishment where ignorance of the law is

show. And see Brewster, supra, n.

(272)

Milner, supra, n. 58, p.

190; and Clinard,

«Poverty,

Development and

Deviance», supra, n

(273)

Milner, supra, n. 58, 190.

(274)

A. Milner, «Sentencing Patterns in Nigeria» in Milner, supra, n. 196. p. 261.

(275)

Ibid.

(276)

Tanner, supra, n. 215,, 7 J.A.A. 159 (1955).

(277)

Milner, op. cit.

(278)

I have seen a number of examples of informal group sanctioning in the

large cities of the U.S.S.R. and have been impressed by the concern shown by private

individuals that their fellow citizens should be falling below the standard of proper

behaviour.

Others have noticed the strength of this attitude, see e.g. J. Conrad, supra,

n, 106, who commented «Group influences are even more important in the determination

of the conduct of the Soviety citizen that they are in Western cultures» (p. 164).

(279

In Cuba special neighourhood groups have been established (Committees

for the Defence of the Revolution) for the purpose of organizing social control at a low

evel, particularly in the large cities.

These are a part of the formal structure of the

system of administration of justice although one has been informed by vistors to Cuba

that informal sanctions, both individual and group, are frequently invoked with regard

to minor social deviations.

See Frayn, supra, n.

(280) See e.g. D. and I

Crook, The First Years of the Yangyi Commune

(London

Routledge and Kegan Paul,

1

H

F. Greene,

The Wall has Two Sides

(London : J. Cape, 1962) ; ]J. Myrdal, Report from a Chinese Village (London

Penguin,

1967).

See also Mao Tse-Tung, «Correcting Unorthodox Tendencies in Learning, the

Party, and Literature and Acts» in C. Brandt, B. Schwartz and J. Fairbank, A Documen-

tary History of Chinese Communism (Cambridge, Mass

Harvard U. Press, 1951).

(281) Elected lay assessors play an important part in the Soviet system, see e.g.

G. Feifer,

Justice in Moscow (London

Bodley Head,

1964).

See also Boehringer,

«Developments

in Criminology»,

jiig

C,

i

F.M. Ssekandi,

«Eliteism in the Judicial

Process

An Appraisal of the system of Assessors in East Africa» (Paper submitted to

the University of East Africa Social Science Conference,

Dec.

1968) ;

R.W. Moisey,

«The Role of Assessors in the Courts of Tanzania», 3 E.A.L.J. 348 (1967) (but note changes

made by the 1969 amendments to Magistrates Courts Act, Cap. 537).

nd see some

comments on the West African situation, and the historical evolution of the device of

assessors,

B

acaulay, «Assessors in Criminal Trials in Ghana—A Study from

Without» (1963), J.A.L. 18.

— 146 —

(282) Supra, n. 270 ; and see Boehringer, «Socialist Penology» ; idem, «Develop-

ments in Criminology».

(283)

It might be suggested that it is perhaps not quite accurate to talk of the

«alienation» of rural people from the «modern system» because that system has never

really penetrated great areas of rural East Africa.

Nevertheless, I think that whatever

term is used, there is general agrement that the «modern system» has not penetrated,

and there is a need to develop a system which is known and used by the general

population in the area to which it applies.

In Tanzania, we have seen, various

methods are being used to develop such systems in accordance with philosophical

concepts outlined by President Nyerere in his papers «Education for Self-Reliance»

(Dar-es-Salaam

Government Printer, 1967) and «Freedom and Development» (Dar-es-

Salaam : Government Printer, 1969).

— 147 —

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The Challenge of Criminology

in A Developing Country :

A case Study of Nigeria

by A.A. ADEYEMI

Lecturer, Faculty of Law, Uuiversity of Lagos

Barrister-at-Law, Solicitor of the Supreme Court of Nigeria

INTRODUCTION : THE DIMENSION OF THE CHALLENGE

A developing country like Nigeria stands at cross-roads where it can

either pretend that there is no crime problem or that the little crime problem

which exists is being very well taken care of.

The first approach may appear

to be supported if it is borne in mind that total recorded criminality of any

single year has never exceeded 150,000, compared with over a million in

England and Wales, the population of which is smaller than that of Nigeria.

However, the figures available cannot be regarded as giving the correct picture

inasmuch as they excluded all cases dealt with by the Local Government Police,

which for all we know, may be greater than those dealt with by the Nigeria

Federal Police.

Furthermore, one cannot help feeling that even cases coming

within the Nigeria Police sphere have been underscored, partly due to their

level of efficiency and may be partly due to official policy.

Such policy is in

line with the second approach.

Many highly placed officials adopt this appro-

ach in their public statements, although some of them admit to the opposite.

Of course, Government functionaries are known to employ such methods to

avoid embarrassing controversy.

But the problem of crime is too serious and

threatening to social and personal security of citizens.

Hence, self-deception

will not solve anything.

The truth is that very little thought has so far been

directed towards the crime problem, and the few rash thoughts that have been

directed towards it have been very misplaced and extremely ill-conceived (1).

We very often take the mistaken view that mere passing of legislation will cure

any ill befalling our country irrespective of whether or not the legislation reflects

our own national desires and cultural aspirations.

There is therefore little

A vivid

doubt that the legislative placation will be extremely short-lived.

example is an Edict which is now about two years old, but has still not been

invoked even by the Ministry which produced it (2).

Yet, the ills envisaged

1)

E.g. Robbery, motor manslaughter, and prison reforms.

(2)

Edict, 1968, of the Western State.

Homicide by Reckless or Dangerous Driving (Summary Trial and Punishment),

Law Journal, Vol. 3, 1969, p. 172-176.

See a comment on this by A. A. Adeyemi, Nigeria

— 149 —

in the Edict are still in existence—a complete waste of legislative exercise !

Rather than cover up the lack of serious effort in this field by glib statements

and inappropriate legislations, the truth is that Nigeria has no integrated policy

on the crime problem, hence, the absence of a consistent and concerted

Governmental programme for the containment and eventual reduction of crime

rate in this country

The various little efforts there have been have lacked

o-ordination ; yet all the agencies (3) concerned will be dealing with the same

individual

Of course, no one must underscore the perplexing enormity of the problem

The challenge is posed at virtually every stage

from definitions through

causation, then dispensation and public opinion, eventually to the calibre of

criminologists available and personal dealing with the crime problem

It is

almost like dropping a blind-folded man from a helicopter into a boat in the

middle of an uncharted sea

His greatest problem is the direction to which

he must move to make the homeward journey

But he must move, or else

perish in the seas

Similarly, it is incumbent upon this country to make progress

in the crime field

Such progress must, however, be the planned and correct

one

All window dressing schemes should now be shed for more realistic

and relevant programmes

This will be in keeping with our declared aim of

national reconstruction

The resources are there to be tapped and the poten-

tialities to be developed. The progress may be slow in the beginning, but even

slow progress is still progress

It is better than a stand-still

The various stages of the problem can now be examined

THE PROBLEM OF DEFINITION

Criminology can be said to be the scientific study of the causes of crime,

the offender and his treatment

and crime reduction and prevention mea-

sures (4)

It becomes apparent, therefore, that the ultimate definition rests

on what we mean by the word crime

Any criminal lawyer will testify to

the fact that the exercise of definition of crime is a very difficult one which

has given rise to much controversy in the literature (5)

The controversy has

been further confounded by anthropologists who purport to tell the world

3)

The Police, the Courts and the Prisons or Social Welfare Departments

)

It is only in this sense that the popular misconception of criminology as a

science of crime detection may be partly correct.

(5) J.W.C. Turner (ed.), «Kenny's Outlines of Criminal Law», 16th Edition

Ch

1

Glanville Williams

«The Definition of

rime»

Current Legal Problems

1955, Vol

8

p. 107-130

Conditions»,

d

Durkheim

«Division of Labour»

W

Bonger, «Criminality and Economic

Lord Atkin in Proprietary Articles Trade Association v. Attorney-General

of Canada (1931) A.C. 310, at p.

«Is White CoIIm‘ Crime Crime ?»,

Wootton, «What is Crime ?» The Listener,

April 28, 1966, E.H. Sutherland

American Sociological

Review (1945) Vol. 10, p. 132—139 and PW

pan, «Who is the Criminal ?», American

Sociological Review (February, 1947) Vol. 12 Pp.

— 150 —

about the African, or more generally, primitive conceptions of crime ().

Suffice it to say, however, that the foreign anthropologist is bound to be taken

with severe caution inasmuch as he is not a lawyer and he purports to talk

about law.

He cannot appreciate and correctly interpret customs by merely

pitching tent for a few months among the people.

Custom cannot be appre-

ciated and understood by mere observation, it has to be lived and experienced.

Furthermore, the foreign anthropologist more often than not relies on inter-

preters who are experts in neither their own languages nor the foreign languages

Any native visitor to our courts will find the best illustration of how interpreters

can mislead non-natives.

Lastly, the subjectivity of anthropological data and

their respective interpretations make their claims very suspect and often times

unreliable.

Nonetheless, their writings are beneficial in the sense that they

stimulate the desire to find out the truth.

Thus, prodding further research.

However, it is not intended to go further Into any controversy about the

concept and definition of crime.

An operational definition is hereby adopted,

viz, that crime is an anti-social act or omission which is proscribed by the

society (7).

It is the misapplication of this view which led the late Professor

Sutherland to regard white collar crimes as crimes, thus sparking of the

Sutherland/Tappan, controversy.

The truth, of course, is that white collar

crimes are not proscribed by the society and cannot therefore be regarded

as crimes.

And if Sutherland were mindful of the law of defamation, he

would have been more wary in advocating that the white collar “criminals”

be made objects of criminological studies.

The implication of his proposition

In such a situation,

is that the objects are criminals, which they are not in law.

the researcher, rather than look for further grants for research, will be looking

for money to pay damages.

Nevertheless, the concern of Sutherland is quite

clear.

He felt, and quite rightly so, that the definition of crime as implicit

in the criminal law, removes from the ambit of criminology certain matters

that should properly belong to it.

The criminality or otherwise of an act should

depend upon the degree of its antisociality.

But the proper course is not to

ignore the law as it stands and proceed in defiance of it, but to seek to achieve

a modification of or amendment to the contents of the criminal law.

In any

event, the problem for criminology is clearly, the problem of antisocial conduct

post through the medium of criminal law.

It will therefore be proper now to

examine the scope and area of the Criminal Law, as the scope and area of

criminology.

(6) See e.g. Driberg,

«African Conce

ion of Law», Journal of Comparative

Legislation and International Law, 1960, p. 203!

et seq. See dalso, Driberg, «Primitive

in East Africaw, Africa, Vol. 1, 1928, p. 63-72 et seq. Contrast, however, the views of

Manilouksi,

«Crime and Custom in a

age Society» ; Lowie,

«Primitive Society» ;

Talbot, «The Peoples of Southern Nigeria» ; Meers, « Law and Autho:ity in Nigerian

Tribe» ; Elias, «Nature of African Customary Law».

(7) Compare the views of P.W. Tappan in «Who is the Criminal ?», ibid.

A S

THE PROBLEM OF AN ALIEN CRIMINAL CODE

It

Criminal law, like any other law, is an instrument of social control.

is, therefore, pertinent that such an instrument should reflect the culture and

aspirations of the society in which it is functioning.

Thus, the warning of

He observed

Driberg is quite pertinent here.

“Law is itself only one aspect of culture” and varies with cultural

variations

‘6

European conceptions of law and justice... are not only

irrelevant but any investigations based upon them is bound to be fallacious.

European... methods of legal procedure, distinctions between criminal and

civil law... have grown up with European culture and are part and parcel

of it : but they have nothing in common with African cultures : they are

alien in growth and sentiment, and cannot be used to explain the basis

of primitive (8) legal theory.” (9)

Consequently, the content of the criminal code must reflect the cultures

and aspirations and our Society.

But no one can say this about the Nigerian

Criminal

Code.

It is basically a product of English culture (10).

It was

conceived by Stephen, the author of the original draft, as a simplification and

codification of the English common law as it stood in 1878.

Later, it was

slightly modified by Sir Samuel Griffiths, (another English settler in Australia)

for Queensland, where it became law in 1899 and promulgated (with slight

modifications) for the Northern Provinces of Nigeria by Lord Luggard in 1904.

It is still this same Code that was extended to cover also the Southern provinces

in 1916, after the unification of 1914.

Little wonder then that the people of

this country have been made to sleep with a very strange bed-fellow for more

than half a century.

Abundance evidence became available when the Code

was allowed to run side by side with the customary criminal law. Customary

or native courts were preferring customary criminal law to the Criminal

Code (11).

The conflict continued until 1957 when the then Federal Supreme

Court tried to work out a solution to the problem, namely, that although

Customary Courts are to apply principles of customary law in determining the

guilt or innocence of an offender, the punishment must never exceed the code’s

statutory maximum (12).

This decision is, of course, logical as regards the

facts of the case.

But its demand of knowledge of two legal systems on the

Little

part of Customary Court judges is, to say the least, too exacting.

wonder then that the Northern Region (as it then was) decided to replace

(8) The use of this word is consonant with the presupposition that eny culture

of the under-developed areas of the world is primitive.

It is to be wondered

if

Gluckman’s analysis of «The Judicial Process of the Barotse», and that of Elias in his

«Nature of African Customary Law», parti

arly chapters VII and VIII (to give just

two examples), have not belied that supposition.

(9) Driberg, «Primitive Law in East Africa», op. cit., 63, at p. 64-65.

(10)

now cannot be defended.

Such a situation existing in 1916 is understandable; but its retention till

(11) E.g. Guba v. Gwandu N.A. (1947) 12 W.A.C.A. 141.

(12) Maizabo v. Sokoto N.A. (1957) N.R.N.L.R. 133.

— 152 —

the Criminal Code with a Penal Code which would sufficiently reflect their

culture, thereby putting an end to the duality and conflict (13)

They were

at least much better of when it was decided in 1960 to abolish unwritten

The South still

retains the Codified Common Law with

Criminal Law (14)

many of its illogicalities and absurdities

And instead of doing some thorou-

ghly comprehensive original exercise (not copying bits and pieces from here

and there) we have engaged in a series of irrelevant and ill-conceived

amendments

We may start with specific defects in the Criminal Code which we have

so unquestionably accepted

Neo-classical basis of Criminal Responsibility

The first of the defects is the very basis of responsability under the

Code—the neo-classical

philosophy

This philosophy is a product of the

European

renaissance and

the

reformation

and their

attendant political

concept of freedom

The concept of freedom gave birth to the concept of

responsibility. This concept of responsibility was later applied in the field of

criminal law to establish the classical philosophy of freewill (15)

The rigidity

of this philosophy was tempered by the neo-classicals to permit of defences

based, at first, upon insanity, immaturity due to age, and the marital status of

a married woman

The list of these exemptions or defences (as they are now

The Utili-

called) has grown tremendously as can be seen from Appendix |

tarians came on to engraft on the neo-classical philosophy, deterrence, rather

than retribution, as the aim of the criminal law

Even then all utilitarians are

of criminal law, as indeed any law, is the protection

agreed that the aim

of the Society, thereby preserving social cohesion

It is not intended to enter

into any discussion on this aim as the relevant arguments by the author have

The acceptance of this aim as the

been condensed into Appendix Il

(16)

aim of our Criminal Law cannot be validly criticised because, as Elias rightly

observed

“Whatever differences there are between African and European

legal ideas, in both the ultimate aim of law in Society is essentially the main-

tenance of the social order” (17)

However,

the neo-classical

utilitarian

philosophy is subject to quite a different but still fundamental criticism

Its

(13)

Although,

failing to be original,

they too ended up _with a Code drafted

by Lord Ma

with some Moslem additions.

ay, an Englihman. The code in substamce is English Criminal Law

(14)

Customary Criminal Law was largely unwritten and as long as it remained

so, it was effectively abolished unless its principles appeared in statutes or statutory

instruments.

The abolition was effected in the 1960 Constitution, s. 21 (10) which became

(10) of the 1963 Constitution

C. Beccaria

«On Crime and Punishment»—for an account

see Holdsworth's

15)

«History of English Law», Vol

XI, p. 575-580; and E. Morachesi, Journal of Criminal

Law, Criminology and Police Science», Vol. 46, No. 4, November-December

(16)

This has been reproduced from the author’s contribution to T.O. Elias

Ed

«The Prison System in Nigeria», with the kind permission of the Editor

(17)

T.O. Elias, op. cit

at p. 131

— 153 —

adherence to the out-dated psychological theory of cognition as the sole

determinant of human conduct cannot now be justified.

It is strange that

lawyers are claiming virtue and validity for what the creators—psychologists

—have since discarded for want of soundness and validity.

Psychology has

accomodated almost a century of further development since the formulation of

the cognitive theory.

The emergence of psycho-analytical theory has thrown

further light on the issue.

How justified then can lawyers be to ignore all

these developments and cling to the cognitive theory for which no special

merit can be claimed today.

And any argument rejecting these later develop-

ments on the ground that the science of psycholcgy is unstable or that its

results are not unreliable enough for the law to take them as its basis cannot

be valid.

In the first place, both arguments will no doubt be applicable to

the cognitive theory. What then is the evidence of its greater reliability over

and above e.g. the psycho-analytical theory ?

Secondly, it is clear that the

lawyers themselves have found the cognitive theory unsatisfactory ; hence the

various defences.

The elusive certainty which lawyers seek for in their unjus-

tifiable fixation to the cognitive theory has resulted in paradoxes and illogi-

calities within the code.

Thus, the present-day paradox created by the defence

of immaturity and the illogicality and absurdity contained in the Code provisions

relating to e.g. provocation, insanity and intoxication.

A positivist approach

could have avoided the various problems now plaguing our Criminal Code

and most of the criminal law systems, if not all, of the common law juris-

dictions.

We may now briefly look at these problems.

Immatury Paradox

One of the very early neo-classical exemptions from criminal respon-

sibility is immaturity due to tender age (18).

The need for this arose as a

But with the

result of the retributive theory of the classical philosophy.

emergence of welfare proceedings within the framework of the Children and

Young Persons Act (19), the immaturity defence rather than aiding the child

has become an obstacle to the child being subjected to corrective measures.

Whereas it would pay the thoroughly depraved child to be found guilty and

subjected to the measures available under the Children and Young Persons

Act (20), the operation of section 30 of the Code is to secure him an acquittal

and thereby be removed from the ambit of the provisions of the Children and

Young Persons Act.

And the reason for this is the cognitive test which has

proved that the depraved child did not know that it was wrong for him to

commit the crime.

On the other hand, it is the better child, with better home

background who has simply had very occasional lapse and whose home

(18)

The relevant provision is now contained in s. 30 of the Criminal Code.

14

any

((1191)6. Cap. 32, Vol. I of the 1958 Edition of the Laws of the Federation, ss. 11,

(20)

Ibid., s. 14

— 154 —

situation can sustain and improve, who is now subjected to these provisions,

which are unnecessary for him.

The worse the child, the less his chances of being subjected to reforma-

tive measures, whilst the better the child, the greater his chances of being

exposed to reformative measures.

This is very paradoxical and extremely

absurd in its result.

Yet, we have inherited the paradox and absurdity.

Provocation contradiction

- The defence of provocation requires, among other things, that the provo-

king act must be such as is likely to make a reasonable man lose his power of

self-control and must actually have made the accused person lose his power

of self-control.

Yet, the same provisions demand that the force used must be

How can a man who has

proportionate to the provocation offered (21).

lost his power of self-control measure his retaliation to make it proportionate

to the provocation offered ?

It is either the man is provoked or he is not.

But once he is provoked in the sense that he has lost his self-control, it will be

a contradiction of such fact to expect him to measure his retaliation.

If he

still can do so, then he has not lost his self-control.

Towards the defence of Temptation

Besides, there is no reason why the defence cannot be enlarged to

include the defence of temptation.

There is very little difference between

the invocation of anger and invocation of temptation provided the passions

can be sufficiently stimulated. A man who abuses or hits another may not

even excite as much passion as a girl or woman who wears a tantalising

In the latter case, if a man sexually assaults the

mini-dress or top-less dress.

woman, he should be entitled to the defence of temptation, either simpliciter

or via media provocation (22).

The same thing may be said of a citizen

leaving his goods carelessly about in circumstances suggesting to the thief

that it is safe for him to do so.

This approach may be regarded as being too

permissive to the thief.

But such notions have already been accepted in the

rudimentary defence of provocation.

It is only to be hoped that this defence

will be rejected because it is not a defence in England or any of the advanced

countries.

Before leaving provocation, it remains only to point out that whilst it

covers assaults and murder with differing consequences (23), the defence of

(21)

See s. 284 of the Criminal Code.

22)

This defence is being developed in an article entitled «Provocation Re-exa-

mined», which is still in progress.

(23)

It is very difficult to support the present-day dfferential treatment of the

provoked assaulter and the provoked murderer.

ere is no reason why both of them

cannot be entitled to acquittal, provided they really lost their power of self-control.

— 155 —

provocation does not cover infliction of grievous harm.

One cannot understand

the logic for excluding this half-way house.

The Problem of Insanity

Never has colossal efforts been so wasted as in the case of the defence

of insanity. Serious efforts at formulating a satisfactory solution have failed,

right from the McNaughten Rules (24), through our Code (25) to Durham (26),

and the American Law Institute test (27).

The basic reason for the failure is

that the cognitive test does not admit of the type of formulation that will be

suitable for the insanity defence.

The nature of the mental disease or defect

on which the defence of insanity primarily rests in our Code have very little

relation with reason and cognition on which the defence ultimately rests.

And worse still, the second paragraph of our Section (28) provides that in

case of specific or partial delusions, the liability of the offender will be to the

same extent as if the delusion stimulated situation were real.

Surely, the

deluded man has no control over his delusion.

The direction of his delusion

towards a criminal

or non-criminal

conduct is a mere matter of accident.

There is no doubt that no one will seriously argue for the employment of

chance in a serious field such as the law on the defence of insanity.

The Elusive Defence of Intoxication

Whilst the provisions containing the defences mentioned above contain

illogicalities and absurdities, those on intoxication (28) do not establish any

special defence, not otherwise adequately covered by the defence of insanity

and that of lack of guilty intent (29).

Thus we have in section 29 redundant

provisions which do not actually establish any defence.

Of course, sec-

tion 29 '(]), is the only effective provision and it states that intoxication shall

not be a defence.

Having highlighted some of the defects of the Code, ought this country

to continue to accept it as we have done hitherto.

Is it not time that something

was done to shake ourselves off from the product of nineteenth century alien

culture.

The Code as it is has added enormously to the challenge which

criminology faces in this country. The Code as an instrument of selection is

(24

1843—See «The Report of the Royal Commission on Capital Punishmenty,

1949-53, London, H.M.S.

Cmnd. 8932, p. 79-88; 98-116; Appendix 8 (a) at p. 391-2;

and Appendix 8 (d), at p. 397-406.

(25) S. 28, which McNaughten plus subnormally and uncontrollable impulse.

(26) Durham v. U.S. 214 F. 2d. 862 (D.C. Cir. 1954).

(27)

Model Penal Code, p. 27, s. 4.01.

(28) This is provided for in s. 29 of the Code.

See figure II of Appendix I infra

for an analysis of the provisions of this section.

(29)

This is governed by s. 24 of the Code.

=]

(8)—

faulty and a faulty selection is bound to result in the wrong people being

chosen for criminological consideration.

THE SCOPE AND AREA OF OUR CRIMINAL CODE

The broad outlines of this have been worked out in Appendix Il to this

paper.

The areas will not be gone through in this discourse again.

What is

proposed for this section, therefore, is to point out what the author regards

as matters which should not have been brought within the sphere of Criminal

Law

Criminal Law is invariably invoked to combat any anti-social conduct

which is causing concern to the Society. And this has resulted in the rapid

enlargement of the field covered by Criminal Law.

This, is turn, has resulted

in the overheading of the Criminal Law, which has been viewed as “a weary

Atlas upon whose shoulders we have heaped a crushing burden of responsi-

bilities relating to public policy in its various aspects.

This we have done

thoughtlessly without inquiring whether the burden can be effectively borne” (30).

We can now examine some specific areas which the author thinks do

not properly belong to the province of the criminal law. These are offences

not involving mens rea, political offences of treason and sedition, buggery

and indecent exposure, Indian Hemp and Drugs, Abortion, Prostitution and

Adultery. With respect, adultery should be properly within the sphere of

the law.

1. Offences lacking mens rea

The provisions of section 24 of the Code give the impression that this

set of offences are occasional exceptions.

And with the combination of provi-

sions relating to mistake (31), strict liability offences can be said to be virtually

non-existent in Nigeria.

This is a good thing because it is difficult to apply

any reformative or deterrent measures to a person who has no guilty intent.

There is, in such a man, simply nothing to reform.

2. Offences requiring Negligence

The provisions relating to these are few in our criminal law (32), but

the most frequent of them seem to be traffic offences.

The justification for

these offences is difficult to see.

They defy any of the three media (33) by

which the protection of the Society is achieved. They cannot be justified on the

(30)

A.F. Allen, «Borderline of Criminal Justice», at p. 4.

(31)

Section 25 of the Criminal Code.

(32)

Criminal Code, ss. 343 and 344, and Road Traffic Act, s. 18,

(33)

See Appendix II, infra.

TR

ground of reformation or deterrence, and neither does elimination provide a

logical justification.

As a matter of fact, claiming to reform or deter negligent

offenders and offences assumes that negligence is a state of mind, which it is

definitely not (34).

Negligence, unlike intention and recklessness, is a state

of conduct whilst the latter are states of mind.

It follows then that negligence

should never be a basis of criminal liability insofar as the declared aims of

our system of criminal justice remain deterrent and reformative.

Furthermore,

it is submitted that all cases of criminal negligence can be adequately covered

by civil remedies.

These are usually effective in preventing repetition of

the offence.

3. Buggery and Indecent Exposure

These offences can hardly be said to be proper province for the criminal

law. The reasons which compel a man to have intercourse per annum, or

with a beast or fowl, or to exhibit his private parts to strangers must be very

strong and compelling.

A glance at figure 4 (a) of Appendix IV to this

Surely

paper (35) will reveal the factors associated with such conduct.

prisons and fines cannot be effective against the product of obsessive-compul-

sive neurosis.

It can, of course, be argued that the offender can be subjected

to medical treatment whilst in prison.

This point can be dismissed firstly by the

fact that there is very little psychiatric facility for prisoners.

Secondly, even

if psychiatric treatment is readily avaible, one wonders when the police and

the courts have become substitutes for the doctor's clinics and the out-patient

departments of hospitals.

4. Drugs and Indian Hemp

We also have provisions preventing the consumption (except by doctor's

prescription) certain types of drugs like opium, morphine and cockaine (36).

These are, no doubt, drugs of strong addiction.

And the misery of addiction

is considerable.

But addiction is a psychiatric problem, not a criminal law

one

Further, there is also danger of addiction in alcoholic consumption, yet

there is no legislation seeking to prevent the taking of alcohol, or banning

trafficking in it, excepting in the North (37).

Yet alcoholic addiction

itself

causes an amount of misery equal to that of drug addiction.

The misery is the

(34) See Allan Whyte, in «Carelessness, Indifference and Recklessness» (1961)

24 Modern Law Review, 592.

ontrast however, the Replies by Fitzgerald

(1962),

25 Modern Law Review, 49; and Williams (1962), 25

odern Law

eview,

But see

again, White's Rejoinder in (1962), 25 Modern Law Review, 437. With respect, White's

views are preferred.

(35)

Aetiology of Crime.

(36) See e.g. the Dangerous Drugs Act, Cap. 48, Vol. II the 1958 Laws of the

Federation, ‘particularly ss. 7 an

(37)

Ss. 401 and 402 of the Northern Penal Code are for maintaining public order

and decency and also for preventing drunken rowdiness in a public place or in a

private place where someone else has a right to exclude him. Although the Code

forbids Moslems to take alcohol.

— 159 —

business of the addict, not that of the State insofar as the drug addict is

usually no trouble to any person other than himself.

Clearly then, drug

addiction is not a problem for Criminal Law, but one for psychiatry.

And

the only way in which the law can help is to include it in a comprehensive

health or social defence legislation which does not depend on guilt for its

operation.

But of greater concern are the steps taken as regards Indian Hemp (38).

The State has not only made it an offence to plant and cultivate it, import it,

sell it, smoke it or be in possession of it, but also has created alarming punish-

ments for these various offences (39).

One cannot but wonder why Indian

hemp merits this special treatment.

The answer can be seen in the alarming

increase in the rate of crimes of violence, in the turbulent political days imme-

diately preceeding the first coup d'etat of January 15, 1966. These offences

were committed by thugs who often smoke Indian Hemp to give themselves

dutch courage.

Little wonder then that the military government decided to do

something drastic about this bane of the politicians era.

Hence, the decree.

It is doubtful though if the military authorities would have taken the same steps

had it been that the thugs were imbibing brandy or whisky (40) before embar-

king upon their crimes.

The authorities forgot that ordinary palm wine,

consumed in sufficiently large quantity could have provided the thugs with

their much needed Dutch courage, and could, therefore, be as potentially

“dangerous”.

It remains for us to dispose of the supposition that Indian hemp

has addictive qualities.

This is certainly false.

Asuni in fact categorically

stated that “cannabis has not been found to be a drug of addiction in

Nigeria” (41).

Lastly, it may be pointed out that imprisonment is the last

deterrent or reformative measure that could be applied to smokers of Indian

hemp because a lot of underground trafficking go in our prisons (42).

A

prison sentence, therefore, cannot be regarded as a deterrent, neither could it

reform the offenders particularly as they tend to regard their imprisonment

for Indian hemp offences as unfair (43).

Such an attitude of mind can engender

in the offender, lack of respect for the law and society ; and this will be an

And how can we

obstacle to the success of any reformation programme.

rehabilitate an offender in a society against which he has a deep resentment ?

Lastly, the idea of statutory minimum sentences is incompatible with progressive

(38)

Also known as marijuana or cannabis

(39)

See the Indian Hemp Decree, Decree No. 19, 1966, section 2 of which makes

it death, or at least, 21 years imprisonment for knowingly planting and cultivating

indian hemp. By section 3, it is death or at least fifteen years imprisonment for its

sale or unlawful importation.

By section 4, ten years imprisonment is provided for its

exportation.

Section 5 provides at least ten years imprisonment for smoking or being

in possession of it.

(40)

They get these cheaply at duty free prices and consume quite a lot of them.

(41)

T.A. Asuni, in «Socio-psychiatric problems of cannabis in Nigeria», Bulletin

on Narcotics, Vol. XVI,

o 2; 17y ot ip;

(42)

The officiers at Kirikiri Prisons frankly admit to this fact.

(43)

They seize every available opportunit

to acquaint visitors of their plight.

Their complaints go in this fashion

«I am here

b

r only indian hemp and I have now

been here for three years I».

— 159 —

‘criminological thinking, which is shifting more and more in favour of elastic

sentences, which can be terminated at any point that the authorities consider

most expedient.

Hence, the rapid development of parole programmes.

And

recently, our Head of State promised us a new anti-robbery Decree which he

hopes will stem the present steep rise in the incidence of robbery in the country.

It is hoped that the Decree will not be another unconstructive piece of

legislation.

5. Prostitution and Abortion

The truth here is that the law is ineffective to control these evils, no

‘matter how hard it tries.

Prostitutes will continue to have clients and promis-

cuity will continue to result in unwanted pregnancies.

If we can face up to these

truths, then we shall shed our ostritch-like behaviour.

We should legalise

and regulate prostitution.

This has two advantages firstly, it will be possible

to provide proper medical facilities for them ; and secondly, government will

be able to collect revenue from them in form of income tax.

If we can tax

honest women, why not prostitutes ?

In the case of abortion, the problems

facing the abortionists are too compelling to make them obey the law.

Furthermore, both the abortionist and the procurer have confidence that their

crime will not leak out to the authorities and their confidence is often justified.

Two ways are therefore open to us : the first is to make the family planning

programme universal, in order to remove the danger of pregnancy.

The

second is to remove abortion from the Criminal Code.

6. Treason

The interesting aspect of this is in relation to coup d’etats.

If they fail,

they constitute treason but if they succeed, there is no offence.

It follows

then that the treason provisions punish only failure.

This is another instance

The truth in this situation is that

of chance in the operation of the Code.

criminology can do very little.

A man who hates the ruler because he is a

corrupt, nepotic, inefficient tyrant can only lament his failure if he a good

citizen who stands for what he believes in.

How then can anybody pretend

that he wants to reform him ? The man will surely not respond to any programme

which assumes that he has derailed from the right path.

In view of the

artificiality of the criminality of this type of conduct, it is submitted that they

are political crimes which fall outside the proper province of criminology.

7. Adultery

It was submitted earlier on that adultery is serious enough tobe within the

proper province of criminal law.

It is hardly understandable that stealing an

orange, which probably costs a penny, should be a crime, whilst adultery

which threatens the basic unit of society—i.e. the family— should not.

It

does not matter that the law-maker in another foreign country has excluded

— 160 —

it from his criminal law, probably because he might wish to commit it, we can

indeed

hardly justify such a position here.

The average Nigerian, and

African, man takes a more serious view of adultery than some men from other

cultures may.

If therefore the criminality of an act should depend upon the

gravity of its anti-sociality, then adultery should be among the top five or

top ten offences.

Therefore, the Northerners should be congratulated for

reflecting our culture, in this regard, in their Code (44).

The foregoing in this section serve to illustrate the application of crimi-

nality to wrong fields, whilst in other proper fields, it is inapplicable.

Our

present Code hardly reflects our culture and its illogicalities and absurdities

hardly justify its retention.

At the appropriate time, it should be abolished

and replaced by a truly Nigerian Code.

But for the Code to be truly Nigerian,

a lot of empirical research is necessary if we are to evolve a Code truly

reflecting our culture.

It will not suffice for us to copy some fine phraseology

from this country or that, piece it together and claim that we have got our

own Code.

That surely is not the way.

We should study our society, the

crime precipitating factors and conditions in it, the form and features of the

crimes, their trends, the available information about the offenders, and above

all, exploit the ways in which our really traditional methods of treatment can

be modernised and employed.

AETIOLOGY OF CRIME

It is pertinent at this stage to turn to the topic of aetiology of crime.

It is not proposed to discuss the various aetiological theories.

That will make

this paper unbearably long.

However, a modest attempt has nevertheless

been made to summarise the theories for easy consultation in the tables contai-

ned in Appendix IV to this paper.

We can then concentrate our attention on

the more serious issues arising from these theories, particularly their relevance

to our conditions in this country.

Our first major problem is the fact that the aetiological theories impliedly

suggest by the direction of the efforts of their proponents, that there is a

distinction between criminal behaviour and non-criminal anti-social behaviour.

Or at least, they concentrate on the criminality phase of anti-social behaviour.

Thus, a lot of efforts have gone into the whys and why-nots of criminal behaviour.

However, in the end, none of the theories can be said to establish any causative

factor specifically for the criminality of their population.

Rather, the researches

only succeed in establishing some association between certain factors and

anti-sociality in general.

The

researches would have been more useful

if

they had tried to find out why certain anti-social individuals manifest their

(44) The Northern Penal Code, s. 387. S. 388 creates the offence of fornication.

— 161 —

6

traits in criminality whilst the others do not.

Of course, it is easy to say that

the criminals must be a different bunch from the non-criminal anti-socialites.

Such an argument cannot stand because there is not the slightest evidence to

support it.

In fact, it is here ventured to suggest that the direction of the

anti-sociality drives of the victims of certain aetiological influences, be this

towards criminality or non-criminal anti-sociality, is a mere matter of accident.

And in the end, the criminality or otherwise of either group cannot form any

real basis for distinction (45).

It is submitted that criminality and non-criminal

anti-social conduct are two faces of the same coin, with the latter being much

larger than the former.

This being so, the aetiological researches are concen-

trating on a minority sample, which cannot be said to be representative of the

features of the majority, whose antics may even be more serious than those

of the criminals.

Another problem confounding the validity of the results of aetiological

researches is that arising from the incompatibility of the nature of the enquiry

with the artificial, arbitrary and often-times illogical legal framework within

which it is carried out.

As already pointed out, this underlies the Sutherland/

Tappan controversy. The solution, of course, is not to reduce legal definition

to unlimited conjecture, but rather to bring sense and realism into legal concepts

and definitions before they can be properly utilised in criminological resear-

ches (46).

It is, of course, necessary to dwell upon the problem of the dark

figure.

It is quite clear, therefore, that, besides cultural differences, there are

many other difficulties which beset the aetiological theories, and which, there-

fore, serve as a caution against their hasty adoption in this part of the world.

We have to look quite carefully and tread quite cautiously.

The theories

are quite notorious for laboriously striving to arrive at common-place conclu-

sions.

Thus, Sutherland arrived at the conclusion that “birds of the same

feathers flock together”, after intricate theorisation (47).

Again,

Bonger

concluded that a poor, hungry, deprived man is likely to steal (48).

In the

same vein was the theory of Cloward and Ohlin (49), Mayhew, that degene-

rate parents, defective home training and criminal neighbourhood may produce

criminality in children of such milieu (50).

Seriously speaking, any crimino-

logist who indulges in diverting his efforts and resources to the achievement

(45)

This then seriously weakens the differentiation argument mentioned above.

But a more potent side-effect of this conclusion is the fact that it makes a cause-and-

effect correlation between aetiological factors cnd criminality impossible. The most

frequent objection to any of the theories is that if the theory is valid, then everyone to

whom the factor in question applies must commit a crime.

But inasmuch as it is not

everyone who is a victim of the relevant factor who commits crime, then the factor

cannot be correlatively causative.

(46

footnote 45, emte.

This may well remove the objection mentioned in the second paragraph of

(47)

E.H. Sutherland, and B. Cressey, «Principles of Criminology», Ch. 4, 75.

(48)

‘W. Bonger, Criminality eand Economic Conditions.

(49)

«Delinquency and Opportunity».

(50)

«London's Labour and the London’s Poor».

— 162 —

of such commonplace results will not be taken seriously in Nigeria.

The

researches have not produced anything which even the common man can

regard as a significant contribution to his knowledge.

Consequently, aetio-

logical research here should tear itself free from some of the sterile efforts

involved in this researches and really concentrate on specific areas of problem.

It should plunge straight typological researches.

These are likely to vyield

greater dividends in terms of data and public acceptance thereof.

Before, however, examining two of the aetiological theories, one may

observe that no single aetiological factor can be said to produce crime.

A multi-factoral approach is more acceptable.

And it is in this regard, among

others, that the prediction studies (51) can be commended.

1. The Anomie Theories

The two theories, the anomie theories and the culture conflict theory

can now be examined because of their special relevance to Nigeria either

in recent years and presently.

The anomie theory in Durkheimean sense (52)

could be said to be specially relevant to this country particularly as from

the political crisis of 1962, which led to the declaration of a state of emer-

gency in the then Western Region.

The restoration days of 1963-1965 did

not see any easing of tension in the country as the remaining parts of the

country took sides in the issues dividing the then Western Region.

This

national split resulted in an intensification of violent offences like assaults and

arson.

By 1965, the disturbances reached alarming proportions, yet the

national supporters of the feuding parties still stood their grounds.

The esca-

lation continued until an abrupt end was put to the trouble by the coup d'etat

of January 15, 1966, which introduced military rule into this country for the

first time.

Although, at no time, could it be said that there was a vacuum

in the “conscience collective”, yet political bigottery resulted in a gradual

weakening of respect for social order, including respect for life and property.

It was at this time that a new crime emerged—murder by burning— otherwise

nicked-named “‘Operation wet him”.

The first coup rather than stemming

violence simply scorged it until it unleashed itself with more venom in the

year, when one could say that in the North and the East, law and order broke

down.

The results were disastrous and it cost us a thirty-month old war and

loss of thousands of the lives of our youths—the flowers of any Nation.

Hardly can this country experience a greater degree of social disorganisation

such as that sufferred both inside and outside the war-affected areas.

But

Nigeria provided a solid testimony to the fact that Durkheim's anomie

theory (53) is a myth and that however great a people’s social disorgani-

—

and H

(51) See e.g. 8. Glueck and E. Glueck, «Predicting Factors in Aetiology of crime,

annheim oand L. Wilkins, « Prediction Methods in Borstal Training».

(52) E. Durkheim, «Division of Labour».

(53)

Ibid., «Division of Labour».

— 163 —

sation may be, there can never be a vacuum of their collective sentiments

Even in the areas of the greatest disturbances, there was no social anomie

However, Mertonian anomie theory (54) could explain the steep rise in

grievous wounding, assaults and robbery, particularly the last

The political

bosses incited their thugs to wound or assault people of their choice

The

employment of these boys brought them closer to their extravagant masters,

whose way of life they covet and will like to emulate, even though they have

no legitimate means of reaching their masters’ standards

Therefore, acts of

robbery were providing the offenders with the avenues of attaining their

nefarious goals (55)

Furthermore, their living in the premises of powerful

politicians conferred certain unofficial immunities on them (56)

Beyond this,

however, it is not say to go

2. Culture conflict

The last crisis, which culminated in civil war, no doubt, caused a lot of

social disorganisation

But by far more serious is the cultural disorganisation

(or cultural anomie) which this country is experiencing today

In fact,

the

prospects of our culture winning the battle for survival looks dim, if one looks

at the way of life of the youth today

The foreign magazines, newspapers

radio bulletins, films and tourists have brought Western culture right into us

in our homes

And our youths seem to be accepting this piece-meal without

any discrimination between the good or bad aspects of the culture

The back-

log of colonial psychology (57) and mentality is helping the process tremen-

dously

Yet, their parents continue to strive to impart into them the culture

of their fatherland. The result is that we are turning our children into cultural

hybrids, particularly with the current practice of the schools for the children

of our elite (58) in which the old English nursery rhymes and folk-tales take

a prominent place in the syllabus

Yet, when the children return home, we

subject them to as much of our culture as is left in us

The time has come when

We

we should realise the great damage that we are doing to our children

are creating a situation of accute psychological stress in them ; and this may

eventually increase our delinquency problem, particularly in the form of “protest-

crimes

Whilst it is not by any means being canvassed that we should cast

everything in 'Western culture overboard, yet we need to retain the best parts

of our culture if we are eventually to forge and retain a national identity

K

Merton

«Social Structure and Anomie»

American Sociological Review

(October, 1938),

Vol. 8, p. 672-682.

(85)

They became innovators according to Mertons typology.

(56)

It was unlikely that a policeman, unless he was then ready for a sack,

who insist on searching a politician’s house or removing a criminal from it, pcrrhculcrly

ih the politician’'s party or his alliance was in power

(57)

The basis of this was that we should regard anythin

of ours as inferior

to that of the colonial masters

We have not yet successfully

one away with this

doctrine

(58)

In fact, such schools are now regarded by both the parents and the children

as a status s

— 164 —

We have already lost our religion (59), the most intimate mode of communi-

cation with our Creator, to the invading forces of Christianity and Islam, the

process is being gradually completed by the loss of our way and manner of

living.

To save our children from the pain of attendence upon their being

cultural hybrids, we have only two alternatives

either to submit completely

to Western culture without reservation, or to reverse the present trend and

resuscitate our culture.

Clearly, the latter alternative is preferred.

A country

without a culture lacks national identity.

And a country without national

identity can never be regarded as a nation.

We want to be a nation, which

a culture of our own and a national identity.

Our culture can be modernised

without capitulation and destruction,

There is plenty of food for thought here.

But whatever happens, we must reduce the psychological conflict to which we

have exposed our children if anti-sociality, and consequently, is not to result

on a large scale.

If we do not, no one will forgive us for shedding belated

crocodile tears.

SOCIETAL ATTITUDES TO CRIMINOLOGY

The aim here is to consider the challenge posed by the attitude of our

citizens towards the science of criminology.

This is necessary because no

criminological programme can succeed independently of the public opinion

of the country concerned.

It is proper to note the misconception that criminology is either the science

of crime detection or that of do-gooders.

In fact, that many lawyers take the

latter view was evident during the Conference on the Magistrates and the

Offender, held here last year July.

They resisted any effort to introduce

criminology to them as a very useful instrument for the performance of their

sentencing duties.

Over and over again, they sang the song (judicial officers

and academic lawyers alike) that criminology would be an obstacle to doing

justice.

The traditional lawyer's dislike of anything that is not philosophical

or theoretically analyticable gave rise to intense suspicion of criminology.

The Government officials are no better.

They are terribly unconcerned

about, or at best, lukewarm towards Criminology.

Sometimes, however, when

some criminological interest is engendered in them, they respond with misplaced

enthusiasm.

A case in point is the much publicised intended reforms in the

prisons.

The circumstances surrounding the reforms are unfortunate and there

is very little to suggest that the reforms themselves when they are eventually

thrown at us will be more fortunate.

In any event, it is not intended to preju-

dice the projected reforms by any adverse comments, although some comments

will later be made on the prospects of the prison system in Nigeria.

(59)

The case of the Jews illustrates the strength of religion as a unifying force.

Scattered all over the globe for about two thousand years, they still remained one

nation until geographical expression was given to it after Wordl War II

— 165 —

Furthermore, the criminologist also has to contend with the professions

of do-gooders (60), whose pretentions lend credence to the lawyer’s suspicions.

The do-gooders are people with a genuine desire to help criminals materially,

and therefore believe that criminology is the medium through which one can

Clearly, Criminology which

buy clothes, cigarettes and sweets for prisoners,

is a neutral science has nothing to do with benefaction.

Again, there are people who answer to the name of criminologist not

out of genuine interest but for some other personal motivations.

This is the atmosphere in which the criminology functions in Nigeria.

He has, of course, to sift the weed from the tare.

His main duty is to direct

his attention to the problems facing the bravery and fortitude.

Of course,

he should expect obstacles and frustations at every stage, he should not be

daunted.

He can, however, eventually reduce his problems by educating

the public the real aim of criminology is to study the phenomenon of crime.

and the criminal, with a view to containing and reducing the incidence of crime.

In fact, one of the objects of the Nigeria Society of Criminology is to stimulate

public interest in criminology (61). With time, we hope, in conjuntion with other

similar societies and the various Faculties of Law, Medicine and Social Sciences,

we shall achieve the objective.

Then, the work of the Criminologist will

become more pleasant.

RESEARCH AREAS

The issues here are intimately bound up with the attitudes towards the

Society.

As said earlier, there is apathy by both Government and private

sector (62) alike, towards the problem of criminology.

But coupled with

this is our economic poverty. As a result of this, the litle money which is

avaible is diverted, as it were, mostly to economic programmes.

Criminology is

often excluded from these.

Litle, however, is it realised that a criminology

programme properly handled could become an economic programme in that

if it succeeds, cost of crime is reduced. But whatever the case may be, there

is very little likelihood of any research grant unless the economic advantages

of the project can be demonstrated.

Otherwise, the money goes to other

priorities.

And because of such situation we have to avoid scrupulously,

unrewarding areas of research, like those mentioned above in the section

dealing with aetiology.

Such results can lead to cynicism about criminology.

This should be strenuously avoided. Prediction studies may be more impressive

—

(60)

In this category are some clergymen, housewives, journalists,

and strangely

enough some people connected with social work.

(61)

The Constitution of the Nigeria Society of Criminology, Clause.

(62) When we appealed locally for funds to support the course,

one of those

to whom we appealed, a

anager, regretted to inform us that

they had no

money for such purposes. What cn irony ? But the same bank will feel concerned if

it was robbed at gun-point tomorrow.

— 166 —

and more beneficial to the community, although constitutional lawyers may

view them with disfavour.

But by far the most timely and most rewarding

researches in a developing country will be those into the administration of

criminal justice.

It is immediately connected to the economy.

Its result will be

more readily visible to them, and they are much more likely to receive public

as well as private support. The researches could be into the institutional form

and the non-institutional form of treatment.

Also,

research

into detection

methods will be very welcome by the community because of its nearness to

them.

Besides, it is likely to be the most effective because once offenders

feel that they are bound to be caught, they are not likely to commit the offence.

Evidence for this can be obtained from the stealthy manner in which most

crimes are committed.

The research priorities, therefore, are as follows : detection, prediction

methods, non-institutional treatment measures, institutional treatment of offenders,

and lastly aetiology of crime.

Another related topic of overriding interest is the keeping of accurate

record of criminality. At present, the statistics are compiled as part of the

annual police report,

This need not be so.

The problem of crime statistics

is big enough to merit a separate and more detailed publication.

For instance,

as they stand, we do not get much information about the person of the offender,

neither do we have sufficient information about the circumstances surrounding

the crime.

All these are necessary to enable better understanding of the crime

problem and the formulation of a better crime-prevention programme.

It is pertinent at this stage to observe that stark figures have not been

made much use of in this paper for a number of reasons.

Firstly, the officially

published figures only go as far as 1965. The 1966-68 figures available are

not yet published and therefore could not be made use of without permission.

But even if they were published they reflect the fluctuations of the crisis so

much that it will be unsafe to draw any conclusions upon them.

ESTABLISHMENT OF A CRIMINOLOGICAL INSTITUTION

We cannot close the discussion of this section without considering the

all-important question of the establishment of a Criminological Institution.

This

will facilitate the carrying out of research in the order of priority enumerated

above.

Of course, teaching and research must be complementary. Therefore,

whether it is a Department, Faculty or Institute of Criminology which is created,

it must still regard its service to the nation as of greater importance than

anything else.

However, the teaching in most places does not produce alround Crimino-

logists.

Rather, it produces sociologists, psychologists and lawyers with special

— 167 —

liking for criminology (63).

Hence, it is much better to take students fresh

for degree courses in Criminology (64).

This establishment can now be

subjected to a bigger regional body which will be primarily responsible for the

survey, and planning of this region in social defence matters,

DETECTION OR POLICE METHODS

The mechanics of this will be avoided so as not to lend credence to the

popular belief about criminology.

Suffice it to say, however, that the Nigeria

Police Force needs to be highly modernised.

This is necessary to ensure

efficiency and speed (65).

The value of electronic equipment in terms of speed

and efficiency cannot be over-estimated.

These are more important than

arms.

It should be realised that a basic principle of the Law of Chemistry

is that every “action yields a counter-reaction equal and opposite”.

In the

case of crime, every police methods is

regarded by the criminals as

a

challenge which they must overcome.

And violence must be overcome with

violence.

In the late 1940s and 1950s, when the normal police weapon was

a truncheon, criminals were known to employ cudgels and at worst matchets

in their operation.

But as the decade of the '50s neared its completion and

turned into the '60s, guns were introduced.

And since then, robbers have

been carrying guns.

Further, since we entered the military era when automatic

weapons were introduced into the scene, criminals have started using automatic

weapons and grenades.

What an escalation |

And always, it was Government

taking the first escalation step.

It is to be hoped that we shall not resort to

artillery and aerial bombardment, because if we do, the criminals will reply

with equal vigour.

The cool

sense of the British

in this

regard must be

admired.

They have striven strenuously to keep arms away from their crime

control and detection programme.

Hence the incidence of shooting is not so

high in Britain today.

It is only to be hoped that our military rulers will

avoid the introduction of further degree of violence.

TREATMENT METHODS

This today is either institutional or non-institutional in form.

Institutional

forms of treatment concern basically the prisons alone in the case of adults,

and Borstals, Approved Schools, and Remand Homes, in the case of Juveniles.

5

(63) See e.g. the London Experience and the Cambridge Experience.

(64)

Compare the system at Montreal.

(65)

the

Perhaps

level of efficiency ot the Police could be discerned from

Aprendix V, behind.

— 168 —

On the other hand, non-institutional treatment of offenders in Nigeria are

fines, probation and discharges.

Prisons

Taking institutional treatment first, we plunge into the consideration of our

prison system.

But inasmuch as we now have a book supplying some infor-

mation (66), the system will not be described again here.

However, some

few points will be made about the system (67).

Our basic problem again is

that we have copied and transplanted the old English prison system, and it

is to be hoped that the proposed reforms will not transplant the English system

at a more advanced stage.

Some of the problems which we face within the

system arise from certain inadmissible basis.

The work system is still uneco-

nomical, and coupled with this are uneconomic wages, next we find a poten-

tially prosperous industry being stiffled by the red-tape of officialdom ; and

lastly, sexual segregation.

These problems have one thing in common, namely,

they are training the prisoner in a closed and controlled environment, which

is totally different from the reality of what he is to face outside.

The earning

scheme does not provide any incentive for hard work and industry (68).

It

will be much better to provide the prisoner with the sort of condition that he

will meet outside and pay him economic wages, from which his accommodation

and lodging and family allowance can be deducted and the rest kept for

him

The problem then is money to carry this out.

'With respect, the prison

service is quite capable of doing this provided it is allowed to develop unfe-

ttered.

The prisons have a vast farming potential which is as yet untapped.

In addition to this, its industrial performance is remarkable, make on the

average over 150 9% profit (69).

If it has an outright grant, without any

condition of repayment, it may eventually snowball into big money which can

ensure the economic independence of the Prisons Department.

As for sexual segregation, it can only have the effect of encouraging

homosexuolify.

The last thing that should be mentioned here is the relationship between

the staff and inmates.

The Prison Staff maintain a good relationship with the

inmates.

Both the Kirikiri (70) and the lbadan (71) examples will suffice.

This happy relationship can be and should be maintained.

But the proposal

to carry arms will immediately "destroy such relationship, besides endangering

the prison officer’s life.

(66)

T.O. Elias, Ed., « The Prison System in Nigeriam.

with other people’s province.

(67) General criticisms of the prison system is being avoided to avoid overlapping

(68)

The rate is 2/—to 4/6d. maximum depending upon the time served.

(69)

See Idada, in T.O. Elias, op. cit.,, Ch

168, at p. 178.

(70) See F.O. Okediji and O.O. Okediji, in T.O. Elias, 90, at p. 133-134.

(71)

During the March disturbances at Ibadan, prisone!

TS took off their uniforms,

gave them to Warders who were then hidden under prisoners

— 169 —

On the other hand, ideas like group counselling and group therapy

should not be imported now.

For instance, the latter involves a democra-

tization.

This, of course, is not consonant with a military regime.

Non-Institutional Treatment

With these few and rather disjointed views it is proposed to leave prisons.

As a matter of fact, it is believed that prisons are hardly necessary for more

than five to ten per cent of the total prison population.

Hence, things like

communal labour or labour camp may be substituted for prison terms.

But

more important for us are some of our traditional methods of non-institutional

treatment e.g. blood-money, which has now developed into compension.

Another

is seizure of property. And yet another is committal with into the care of a

chief or family head. This last one may be likened to probation.

Whichever

of the non-institutional methods is used whether traditional or statutory, it has

the relative advantage of minimum stigma and economy over and above the

prison system.

CONCLUSIONS

It is not desired to repeat all the arguments which have been advanced

above.

Nevertheless, it is emphasized that the greatest challenge facing

criminology in Nigeria is originality of thought and of ideas.

We need to

get out of the straight jacket or our alien, illogical and absurd code.

Criminology is, no doubt, very challenging in a developing country.

There are so many things to be done, so many new grounds to be turned.

Over and above this there is some public education to be carried, which may

involve a little bit of propaganda.

The strategy of criminological research

must be such that deadweight and fruitless researches must be avoided.

Research areas must be carefully chosen, if ever, criminological research is

to grow, if criminology is to develop. The first few steps must be carefu

.lly

taken.

Fig. I.

APPENDIX |

EXEMPTIONS FROM CRIMINAL RESPONSIBILITY

!

|

TOTAL

PARTIAL

PTO for elaboration, see figs. Il and Il behind

NOTE :

1

Unless otherwise specified, the provisions given here are those of the Criminal Code.

2. C.P.A. = Criminal Procedure Act.

3

C.Y.P.A. = Children and Young Persons Act.

— 170 —

Fig. 1l

TOTAL EXEMPTION

.4

ABSOLUTE TOTAL

l

NON-ABSOLUTE TOTAL

(Acquittals and Discharges

(No Conviction but Detention)

1

|

l

|

|

|

MISTAKE

DURESS

DEFENCE

EXTRAORDINARY

|

|

J

|

|

NECESSITY

IMMATURITY

INTOXICATION

LEGAL

INSANITY

INTOXICATION

S. 25

eg. S. 33

(of self, others

EMERGENCIES

(e.g.

surgical

S. 30

IMMATURITY

and

property)

S. 29 (2) (a)

JUSTIFICATION

S. 28

S. 29 (2) (b)

CYPA

Ss. 32 (3),

S. 2

operation)

286-293

and CPA,

and CPA Ss.

s

12

S. 297

s

230

229 and 230

|

OFFICIAL DUTIES

PERSONAL

OR INDIVIDUAL

ACTIONS

l

|

|

l

|

|

JUDICIAL OFFICERS

POLICE

PRISON STAFF

EXERCISE

PREVENTION

PROVOCATION

S. 31

S. 32 (1)

(including

OF CERTAIN

OF REPETITION

IN ASSAULT CASES

the hangman)

LEGAL RIGHTS

OF INSULTS

S. 284

<

Ss

294-296

Ss. 294-296 i

A

S. 286

Fig. 1l

PARTIAL EXEMPTION

|

|

PROVOCATION

IMMATURITY

S. 318

S. 391 (2)

C.P.A. 5. 368 (3)

C.YP.A. S. 26 (2

C.J. (M.P.)

Decree, 1966, 5. 5

NOTE. — Cases of exemption here are in murder cases

APPENDIX 11

Fig. 1.

OBJECT (S) OF THE CRIMINAL LAW

CRIMINAL LAW

l

PROTECTION OF SOCIETY

|

PREVENTION OF COMMISSION

OF CRIMINAL OFFENCES

I

l

l

|

|

DETERRENCE

ELIMINATION OF OFFENDERS

REHABILITATION

A

FROM SOCIETY

OF OFFENDERS

B

C

NOTE. — Each of these three branches will be developed separately for convenience

of space.

See Fig. II, III and IV infra.

— 172 —

Fig. Il

DETERRENCE

|

GENERAL

SPECIFIC

I

|

VICTIM

l

1

l

|

GENERAL SOCIE

ECONOMIC BINDING

CORPORAL

LOSS OF

LOSS

OVER, etc.

PUNISHMENT

COMMUNAL LIFE

|

i

|

|

1

J

1

FORFEITURE

|

|

ASSISTANCE

GENERAL

DISAPPROVAL

THREAT

IN OBTAINING

DETERRENCE

|

l

OF ELIMINATI

N

MERE

LOSS

(see under

(see Fig.

FINES

INFLICTION

OF PHYSICAL

General Society

on elimination

OF PAIN

FEATURES

above)

(e.g. flogging)

(e.g.

loss of

an arm,

i

COMPENSATION

castration etc.)

|

|

VENGEANCE

COMPENSATION

HOSTILITY

THREAT

OF SOCIETY

OF SPECIFIC

DETERRENCE

(see supra)

o

e

|

i

ELIMINATION ENSLAVEMENT

SEIZURE

GRADUATED

(except

Death)

COMPENSATION

|

|

MERE

TRETRIBUTION

RETALIATION (or just retaliation)

Fig. lll.

ELIMINATION OF OFFENDER

FROM SOCIETY

|

|

PERMANENT

TEMPORARY

1

|

|

DEATH

EXPULSION

EXILE

by whatever

CONFINEMENT

method

l

|

BANISHMENT

|

OUTLAWRY

INCARCERATION

MERE RESTRAINT

l

i

|

TRANSPORTATION

CONVICT

|

J

|

REMAND

TYING

BEING

BEING PUT

GAOLS

GAOLS

TO TREES

CHAINED

IN STOCK

REHABILITATION

Fig. IV.

|

|

TREATMENT

REFORMATION

|

|

l

l

|

CONFINEMENT

TREATMENT

TRAINING

CHANCE

FOR PURPOSE

AS CONDITION

(confinement)

FOR VOLUNTARY

OF TREATMENT

OF DISCHARGE

REFORMATION

OR PROBATION

|

|

|

1

|

l

|

|

|

FINES

ABSOLUTE

CONDITIONAL

PROBATION

MEDICAL

PRISONS WITH

|

DISCHARGE

INSTITUTIONS

MEDICAL

AS AN

AS AN

DISCHARGE

FACILITIES

IN-PATIENT

OUT-PATIENT

(e.g.

where

the

(voluntarily)

Court has no po-

wer to order de-

tention in a men-

|

tal institution)

|

|

PRISONS

BORSTALS

APPROVED

(closed and open)

SCHOOLS

|

|

MENTAL

OTHER

HOSPITALS

INSTITUTIONS

APPENDIX Il

Fig. I

THE AREA OF THE NIGERIAN CRIMINAL CODE

|

d

J

l

|

RULER'S INTEREST

PUBLIC INTEREST

INDIVIDUAL

INTEREST

N

B

1

The Criminal Codes of the South are identical save that the States Codes do not

contain Federal offences like customs and certain revenue offences.

The Southern

Codes are virtually similar in substance with the Penal Code applicable in the

Northern States,

excepting for certain minor differences such as the offences of

adultery, fornication and drunkeness, known to only the Northern Penal Code, and

some difference in the definitions provided for homicide and theft, although the

differences disappear in the ultimate analysis.

Hence, most, if not all that are said

in respect of the Criminal Code will be applicable to the provisions of the Northern

Penal Code.

The offences illustrated in the figures following are not exhaustive.

They are more

or less the most prominent of the offences in the categories specified.

Fig. Il

RULER'S INTEREST

|

TREASON

SEDITION

TREASONABLE FELONIES

|

TREACHERY

N. B. — Treasonable felony is preparation, as distinguished from attempt to commit

treason.

— 176 —

1l

Fig

PUBLIC INTEREST

(CHPS. 19-24)

(R.T.A., etc.)

|

|

l

|

{

|

ROAD TRAFFIC

REVENUE

SANITATION

PUBLIC ORDER

MORALITY

|

|

|

l

|

|

l

l

|

l

NEGLIGENT

PARKING

HOMICIDE

DESTRUCTION

PROSTITUTION

!

BUGGERY

CORRUPTION

QUARANTINE

DANGEROUS

AND

OF

LIVING

OBSCENITY

RECKLESS

OBSTRUCTION

ON

IMMORAL

AND

MOSQUITOES

DRIVING

EARNINGS

EXPOSURE

1

|

l

l

|

|

l

TAX AND

POSTAL

CUSTOMS

AFFRAY

RIOTS

OBSTRUCTING

HIGHWAY

LICENCES

SERVICES

DUTIES

Fig. IV.

INDIVIDUAL INTEREST

(CHPS. 25-49 C.C.)

|

|

PERSONAL

|

PROPERTY

REPUTATION

|

|

|

DEFAMATION

|

|

NON-SEXUAL

J

J

|

|

SEXUAL

NON-VIOLENT

HOMICIDE

STEALING, etc.

BURGLARY

MALICIOUS

ASSAULTS

ASSAULTS

EXPOSITION

AND

DAMAGE

(including

OF LIFE

HOUSE BREAKING

Robbery)

OR HEALTH

TO PROPERTY

TO DANGER

APPENDIX IV

Fig. |

AETIOLOGY OF CRIME

|

|

l

|

SOCIAL APPROACH

SOCIAL-PSYCHOLOGICAL

INDIVIDUAL APPROACH

APPROACH

For a detailed break-down, see Figures Il, Ill, IV and IV-A behind

(Copyrights Reserved.)

— 179 —

Fig. Il

SOCIAL APPROACH

l

STATISTICAL

(QUETELET)

AND

CARTOGRAPHIC

|

METHODS

(GUERRY)

|

{

(ECOLOGICAL

APPROACH)

ANOMIE

|

(TRASHER)

|

l

|

(DURIKHEIM)

(MERTON)

(SHAW and MdKAY)

(CONTRA LANDER,

MORRIS,

JONES, WILSON)

ECONOMIC APPROACH

A

CRIME

AND

ECO‘NOMY RELATED

(ARISTOTLE, MARX, VOLD)

l

|

|

POVERTY

PROSPERITY

(Bonger)

(Powscoe,

Jacquart,

CUPIDITY

PROFESSION

Mannheim)

(Bonger)

(Mayhew, Bonger)

(Copyrights Reserved.)

180 —

Fig

1

SOCIAL-PSYCHOLOGICAL APPROACH

CULTURE

l

|

CONFLICT

TRANSMISSION

|

IMMITATION

(Tarde)

DELINQUENT SUBCULTURE

DIFFERENTIAL ASSOCIATION

OR CONTRACULTURE

(Sutherland, Gressey)

|

l

FAMILY

DANGEROUS

CLASSES

(Mayhew)

GANGS

NEIGHBOURHOOD

(Trasher, Cohen,

Miller,

Cloward and Ohlin)

(Mayhew, Shaw and

McKay;

Cloward and

Ohlin,

Sutherland)

|

|

J

BROKEN HOME

HOME

FAMILY SIZE

(Burt, Glueck, Healy

DISCIPLINE

and Bronner,

(Burt, Glueck,

Contra Fergusson,

Tappan)

|

—

Shaw and MdKay,

Wootton, Jones)

|

FAMILY TENSION

SMALL FAMILY

(Jones,

Shaw

(Burt)

and MdKay)

LARGE FAMILY

(Wootton)

INFLUENCE

OF SIBLINGS

(Wootton)

(Copyrights Reserved.)

Fig. IV.

INDIVIDUAL APPROACH

l

l

l

BIOLOGICAL

PSYCHOLOGICAL

OR CONSTITUTIONAL

FACTORS

FACTORS

l

|

l

|

PHYSIQUE TEMPERAMENT

MENTAL

PERSONALITY

DISORDER

DISORDER

[

(Psychopaty)

l

l

(Lombroso)

(Kretschmer)

!

|

|

l

PARENTAL

(Hooton)

(Willemse)

DEPRIVATION

SUBNORMALITY

(Goring, Goddard,

|

|

(Sheldon)

Fergusson, Contra,

l

(Sheldon)

Sutherland)

(Bowlby,

Andry)

HEREDITY

(Contra,

(Goring)

(Goring, Contra, Jones,

Lewis,

Reckless, Sutherland)

‘Wootton)

OTHER

(East)

J

CHARACTER

OR

|

PERSONALITY

TWIN STUDIES

DISORDERS

CRIMINAL PARENTS

MENTAL ILLNESS

|

l

1

l

(Lange)

(Kutner)

(Eysenck)

|

(Rosarnof)

|

|

PSYCHOSIS

NEUROSIS

jars o

See Fig. IV

(Copyrights Reserved.)

— 182 —

Fig. IV-A.

MENTAL

ILLNESS

GENERAL PREDISPOSITION

TYPOLOGICAL PREDISPOSITION

MENTALLY

ILL CRIMINALS

CRIMINAL MENTALLY ILL

PSYCHOSIS

(as Approved by East,

NEUROSIS

(Erickson)

Bromberg and Thompson)

(Contra, Dunham, Silverman)

1

l

ORGANIC

4

FUNCTIONAL

ANXIETY

PHOBIA

OBSESSIVE-COMPULSIVE

HYSTERIA

NEUROSIS

NEUROSIS

(Malicious

Damage,

Pedophilia

Gerontophilia, Zoophilia,

INTOXICATION

TRAUMATIC

ENCEPHALYTIS

SENILE

GENERAL

SY

Necrophilia, Scoptophilia,

PHYCHOSIS

PSYCHOSIS

Exhibitionism, Homosexuality)

LETHARGICA

PSYCHOSIS

PARESIS

(rape,

inde-

(malicious

dama-

(rape, indecent

(pedophilia,

(stealing,

cent assault)

ge, Arson)

assault

zoophilia)

malicious

(rarely sexual

in post

encephalytic

damage,

offences)

condition)

scoptophilia,

pedophilia)

SCHIZOPHRENIA

PARANOIA

MANIC-DEPRESSIVE

INVOLUTIONAL

(personal

(homicide)

PSYCHOSIS

MELANCHOLIA

violence)

(assaults,

and in the

depressive states,

homicide)

SIMPLE

HEBEPHRENIC

CATATONIC

PARANOID

PTO

(assaults,

homicide)

(Copyrights Reserved.)

MEANINGS

Defilement,

Pedophilia

Gerontophilia : Intercourse with very old women.

Zoophilia

Bestiality or intercourse with animals.

Necrophilia

Intercourse with corpses.

[ T O A

Scoptophilia

Voyeurism, or peeping.

APPENDIX V

1965 CRIME FIGURES

—_—

=

O?‘FENCES

NO OF

DETECTED| CLOSED

CONVICTED PENDIN(;

1

QFFENCES

Oftences agai

ic

er

it

5,428

3,749

324

1,408

1,521

Bribery and Corrup-

tion

560

402

72

72

234

Rape

o

1,465

1,055

182

212

512

Prostitut

ion

1,363

950

158

188

460

Murder

663

622

32

493

30

;:

Grievous

harm

and

‘Wounding

3,895

3,017

533

818

1,055

Assault

29,165

19,538

2,855

6,288

7,590

Stealing

45,942

40,522

14,956

6,635

16,549

Robbery

1,446

1,291

375

123

738

é

Burglary

7.295

7,014

3,188

321

3,476

11

House Breaking

2,646

2,513

783

329

1,254

Arson

929

860

12

132

48

621

13

Traific Offence

12,861

12,861

1,928

6,004

4,171

14

676

616

Drug and Narcotics

136

TOTAL

114,334

95,100

25,518

22,612

38,674

==

et e

— 184 —

Met odological Aspects of African Criminology

by G. HOUCHON

Professor at the Faculty of Law,

Director of the Center of Criminology and Social Pathology,

University of Lovanium, KINSHASA

A few years ago at a meeting for Directors of Institutes of Research in

Criminology at the Council of Europe, Professor Radzinowicz expressed the

opinion that criminologists should not bother too much about problems of

We needed so badly some basic

methodology and techniques of research.

raw facts and some serious and very useful work could be achieved in the

field with crude means.

He pointed to the work of Durkheim and Burt which,

to my opinion, would not propose very happy examples for this point.

Last year, in front of the same audience in his general Report on Key

Problems in Criminology, Dr. Gibbens was rather inclined to admit that

progress in organisation and in methodology for criminology were really

important areas to which we shall devote more attention.

He said that

anyhow, methodological problems should precede theory and opinion that

should be discussed, | think, since these two aspects are research work and

can only be very arbitrarily separated.

Finally, Professor Mannheim stated in one of his books that no one

should ever discuss method problems if he was not himself deeply involved

in research. This very wise advice | feel | should follow so that | would not

consider myself as delivering a lecture as a methodologist in criminology,

but as discussing some important hard core obstacles we have met while

working in Criminology and Social Pathology in Congo-Kinshasa these last

five years.

Although we shall try to describe the types of projects we work on and

how we came to choose them at the end of this paper, let us immediately

state that ours is an academic approach in which we try to link teaching,

tutoring, research and social clinical practice.

The projects we would enhance

should be useful to national social defence but not necessarily as stated by

official authorities ; if no appropriate methods exist to tackle the problem, it

should be discarded.

If the technical assistance aspect becomes a burden

overloading the research time-budget, one should perhaps dropt the project

unless some serious promise of theoretical returns is a sound expectation for

the future.

So we look for knowledge.

But as stated, R. S. Lynd in 1939

—*“Knowledge for Words”, this is the challenge we should try to meet now.

— 185 —

As our first problem is, should we not follow Professor Radzinowicz’s

advice especially in Africa or in any other third world country ? The second

problem is whether there is or should be such a thing as any African Crimi-

nology and if we admit the idea, what are its special and main problems ?

This will lead us to a few technical aspects of research work, which will be

We intend to provoke

chosen among the most evident and classical ones.

a seminar on sophisticated devices for research, but on the contrary to

indicate that these questions are not very highly complicated topics for some

restrained scholars circles, but that we—the criminological workers are all

involved in the process of giving to criminology the status of our attendance.

Finally, | should like to discuss a field in the framework of a larger category

that of social pathology.

%k

.—W. Clifford who has devoted very considerable attention to criminal

problems in Africa stated in a paper on research problems in criminology

on this continent that some kinds of tasks are urgent indeed, even if we can

tackle them with some very partial hypothesis and that even from elementary

observations may be of considerable value.

Data on each type of crime,

their date, recidivism, education levels of criminals, the religion or tribe affi-

liation and their attitudes can be most valuable.

Usually, these data will

have to be gathered by the criminologist himself on small samples of delin-

quents since no valuable general registration exists and official descriptive

statistics are of very poor reliability for intra or inter-comparability. A much

more important drawback for the progress of criminology is the very poor

development of basic sciences such as biology, psychology, social psychology,

sociology, and even economics, seeing from a social, economic point of view.

This situation is very variable from country to country.

It seems to me, for

instance, that a country like Nigeria is much better equipped than most

other countries of the sub-Sahara region.

Especial position must be awarded,

however, to social anthropology and specially, studies on judicial processes

and political institutions.

A region like Central Africa has really been very

thoroughfully prospected. And happily, crime holds a very little place in this

literature and especial descriptions of its forms.

But afterall, it may be that

crime is of a very limited conventional use to describe and explain these

social structures, their institutions and their cultural backgrounds.

A few years ago, | was studying the social structure and the cultural

network of a small Belgian Prison.

| had read dll the literature available

on the subject and was prepared to a very careful examination of the sexual

roles as one of the main dimensions of a typology of inmates that could help

me to study their way through the correctional process.

To my amazement,

this area of research offered very little constructive returns.

Not that no

homo-sexual activity occurred in the prison, not that it was conspicuously

concealed to the field worker.

But the data were of no strategic importance to

— 186 —

Some

explain social relations among inmates or their special sub-culture.

other ingredients of the inmate culture simply could not be omitted if some

muddle of it was to be hypothesied for further research work.

So, one of the first questions we should tackle some way or other in

criminology in Africa is to know whether we treat very important data or

And

social facts of trivial importance in the general muddle of society.

statistics will not deliver the last word to this challenging question.

If we come back to W. Clifford’s opinion that something must be done

to collect data however unsophisticated may be, our general scientific back-

ground and however useless may be most of the official data and imprecise

our techniques of research, we are driven back to Professor Radzinowicz's

agnosticism towards methodology.

But careful attention to Clifford’s paper

shows that he certainly did not intend to be so radical for his own research

work.

One very important research principle we must stress now is that the

myth on “raw facts” and their importance must be destroyed specially in an

auvdience where some non-specialists in social science would too readily admit

face value to these facts.

No natural scientist is prepared to study material

pertaining to his discipline without treating it in some way or another so that

it is ready for observation or experimentation, and the way the raw data

have been collected may definitely spoil the samples he gathered. There is

no reason why this situation should be different in social sciences and

specially in criminology.

Things can even be worse, since nobody would

dare in any interpretation of a material that the natural scientist discards as

unfit for research work (let us say some moon-soil samples), but raw facts

of social importance as criminal data may be captured by untrdined publi-

cists allowing them to reveal some fulfilling prophecy. This we hear some-

times about the rise of crime rate, or the existence of the specific type of

crime wave, and also about the deterrent effect of some types of punishment

like death penalty (this has been the case in Congo and in Ethiopia) or

about corporal punishment (as has been the case in the minimum Sentence

Act in Tanzania).

Lately one of our assistants was anxious to gather data on the specific

attitude boys would exhibit during a bush campaign, the boys were delinquent

inmates of a special school where we have a demonstration project involving

the persons of an intern sociologist. Unhappily, he had very little time to

train the custodial workers who were responsible for the campaign and

prepared no schedule but had an informal session with them explaining what

kind of material should be gathered. We collected very interesting data on

the personality of these improvised workers, and this was a comforting by-

product, but | am afraid, the main project was a hopeless mess.

By this

very true example, | only wanted to show that the criminologist is naturally

very dependent on a number of untrained intermediates and that we should

be very concious of this unprivileged situation.

Now these

intermediates

may be very highly trained indeed in other fields, where they have achieved

some very respectable scholarship, for instance in Law or Administration, but

we cannot expect from them more interesting raw data than those produced

— 187 —

by more modest professionals.

This means that if criminology is to be socially

useful at all, it should be built in the social defence system.

The next problem is obviously to elucidate what we have in mind when

we suggest that the raw data should achieve some fitness for scientific analysis.

We are , of course, all familiar to questions like reliability and validity.

These technical

problems are not the appropriate ones for the present

discussion which is much more general.

In the 1940’s, G. Dollard and E. H. Sutherland, each on their behalf

worked out general theories of criminal behaviour : the frustation aggression

hypothesis and the differential association principle.

They both wrote, and

I doubt they had consulted each other before, that we lacked much more

theory than facts in criminology.

Surely, we may suggest that they have

been over-optimistic, and specially we who work in the African scene.

However,

I would restate these opinions in saying we lack theories that indicate the

appropriate type of facts we need in criminology. And this is where concern

for methods, and concern for theory appear to be closely linked.

What is the situation for criminology in Africa ? 'We have inherited the

two main approaches coming from developing countries

the multi-factorial

approach and the more theoretically conscious approach.

The first one we

meet in the important research on juvenile delinquency in French-speaking

Africa by the C.I.LA. The project beared on material coming from Cameroon,

Ivory Coast, and Madagascar.

The schedules, the statistical treatment of

information, the multi-disciplinarian approach were of very high standards.

One could compare the strategy of this research to the multi-lateral attack

we find in the works of the Gluecks.

Of course, the data collectors met some

specific difficulties, for instance, the very high special mobility of the youths

and their families, and | do not mean to say that the data had the same

value as those of “unraveling juvenile delinquency”.

But a careful study

of the work of the C.LLA. leaves the reader with an impression of dismay that

all these piled and empirical data gave a very little hint on what could be done

from a practical point of view to treat and prevent delinquency, and still

less is added to the body of theoretical knowledge.

As an example of theory-conscious approach, | would cite P. Bohannan’s

study on African Homicide and Suicide.

A study conducted on a full and

documentary basis with the Tiv, Luo, Nyoro, Gisu, Luyia, Soga and Alur people.

Comparing the offender-victim relationship, he writes

““Criminologists them-

selves have done some work in this regard, but for many of them statistics

and rates become an end instead of a means”.

The most important factor

to keep in mind in a comparative study of criminal homicide is that it, like any

other cultural trade, must be studied firmly within its social and cultural

setting.

When we become theory-conscious we meet what has been called

grand and middle-range theories.

In criminology, we would call a grand

theory a body of principles elicited to explain all types of crimes at all levels,

this is to say at the level of criminality as a social phenomenon and of criminal

behaviour and the personality of the criminal.

An example of this would be

EiaRe

A middle-

the differential association—differential social organization theory.

range theory covers only part of the material, either focussing on one type of

crime, at all levels of explanation, or on one level of explanation for a range

of crimes.

For instance, we have found the criminal maturation process a

most useful model to explain : theft, violence, hemp use and even most sexual

crimes among juveniles in Kinshasa.

This has enabled us to lay down some

directives for treatment and at least of what should not be done for prevention.

| must confess these directives are far from followed, but this is another story...

A special problem for us is how useful are theoretical models, mostly

coming from the U.S.?

This is raising one of the aspects of cross-cultural

criminology.

An important type of scientific approach

is what

is called

replication-verification.

This refers to the repetition of a research procedure

to check the accuracy or truth of the finding and frequently in another culture.

For instance, the “‘gradient theory” of the ecological Chicago school has been

replicated and the results modified in France, Ceylon, Britain, Argentina, and

the U.S.

One of our students has tried with Kinshasa for crime rates, and one

of our collaborators with mental illness rates and you always come to a

comforting conclusion and this is that crime rates or other sociopathological

rates are never randomly distributed throughout an urban territory, but of course,

this is only the beginning of a more thorough research process.

What | specially

want to discuss here are the alternative strategies for replication.

Graphically,

one could compare the bold method and the lazy method. The bold method

is a fantastic affair, at the total level of societies.

De Fleur who tried to replicate

A. Cohen’s reaction-formation theory in an Argentine culture (Cordoba) con-

cluded that no such replication could be achieved unless the complete model

of the culture in which the replication is done is not constructed.

After com-

paring the culture in which Cohen had worked and the Cordoba one he disco-

vered that the model was not convenient.

This is throwing the baby with the

bath.

It should be rather quickly evident to a trained observer of foreign

cultures with specific interest in criminology, that some models or theories have

more chances to be replicated than others.

This is for instance what M.S.

Shoham did with culture conflict and stigma theory for Israel.

This | would

call the lazy method, which is dignifying in science because | mean it to be

equivalent to « economic ».

In Africa we should probably choose the second

methode and focus on middle-range theory that could prove useful to some

immediate preoccupations of our clients.

By our clients we mean the Judiciary,

the prison of probation administration, the police and other welfare authorities.

The difficulty here lies in discussing the ends of research with the clients who

are also, and this is an unhappy situation in a bargain, called the authorities.

Professor Christie of Norway has, | think, correctly stated the problem in

saying that we should not hurry to solve criminological problems as social ad-

ministrators have stated them and that criminologists should be at least entitled

to have the right to put some other questions.

let me give you a very

simple example we met in our daily practice.

A special school for delinquent

boys in the suburbs of Kinshasa had a very high ratio of officially recorded

— 189 —

evasions, and even habitual absconders.

The administration wanted us to

verify whether these repeaters could be identified and processed to a more

or less closed institution (as far as this word has any meaning in Africa) or

whether the whole situation was not hopeless after all and if our open institu-

tion should not be walled.

A close look to the very imperfect material we

could gather and systematic interviews of the returning absconders showed

several important points

—

The definition of evasion by the staff was very erratic and vague.

pR——

A third of the boys of the sample were in fact paying visits home because

they were not visited and came spontaneously back.

Half of them were finally brought back to the institution.

Most of the boys interviewed expressed deep feelings of boredom, or

were frightened and bullied by older boys.

They resented the capital-

system, which consisted of some awkwardly understood self-government

of organizing the institution.

Other data clearly indicated that our clients were less the absconders

than the institution itself and a complete study of its inmate social system had

to be launched.

While planning this extension of the research another sub-

culture clearly emerged that of the guards or socalled « educators » and this

is where the whole research process may very well be blocked. The present

status of the story is that the wall is not built, absconders are not removed in

a closed institution..., but still escape. An important « finding »—if this exag-

gerated word may be used here—is that a large part of the sample—probably

20 %,—should in fact have been non-institutionally treated, but that no decent

or existing group could back them.

Those of you who have resented my first theoretical approach will cer-

tainly state that this last piece of research is just of the type pointed to by

empiricists and could somehow or other be useful to the prison administration.

But this | would nor properly call research, but the kind of task one must accept

to be entitled to pursue research of a more definite use to criminal justice

spe-

cially the treatment process and the special problems of inmates sub-cultures

and their impact on the treatment process.

Il. — The second main problem | planned to discuss in this paper is

why an African Criminology ?

Does this mean that something like a regional

science exist ?

Surely you have gathered from my premises that | believe

in science as a comparative and international process and that no ideology

and specially no political one is an incentive in my belief of the necessity

to build an African Criminology.

It is a dangerous myth for science as a

whole that social sciences in Africa are of a complete different nature from

what they are in developed countries.

Against this myth a very firm theore-

tical position is a safeguard.

We shall now proceed to the examination of two questions

a)

What is the background for an African Criminology ?

— 190 —

b)

How cross-cultural can criminology be inside Africa ?

A

— Is it not sensible to think that a certain number of variables act

in a rather identical way on the social structure, the socialization process,

the formation of personality and the various aspects of deviance and social

reactions to crime.

These variables may call decolonization, rythms of hori-

zontal and vertical mobility, the educational process specific to African coun-

tries, culture and norm conflicts, research of political equilibrium and struggle

for a more even economic welfare.

P. Vanden Berghe in his reader on « So-

cial Problems of change and conflict in Africa » has shown that all modern

African states share substantially similar administrative structures, economic

production, patterns of urban settlement, family structures, professional spe-

cialization, educational systems, social stratification and other basic features

of the non-traditional sector of contemporary African societies ?

Now, this

It results from socio-

cannot be equated to a more process of Westernization.

logical and cultural structural qualities such as the distribution of power, the

organization of bureaucracy, the modes of production, urbanization and other

related phenomena.

One must clearly see that this could be called the moder-

nization process of Africa, which is something different from its westernization,

and also from its anthropological cultural idiosyncrasies dear to the traditional

ethnologist.

This is the kind of network we have in mind when we speak of

an African Criminology.

One may even think that Sub-Sahara, a traditional

U.N. region, has more homogeneity than heterogeneity for the various aspects

just recorded.

B. — How cross-cultural could be criminology inside that part of Africa ?

He should not conceal the very profound cultural differences and the consi-

derable legal structure variances between the countries where the official lan-

guage is English or Swahili and the conutries where this language is French.

French-

The object of this course will illustrate most vividly this difference.

speaking African countries know little or nothing about probation or non-

institutional treatment for adult offenders, although they have suspensed sen-

tences and parole.

The penal law of these countries is still largely of the

neo-classical type, their judges criminologically untrained.

Retribution and

Of

deterrence remain even at a very high level, a basic penal philosophy.

course, the interest for a different approach exists and the XVlith International

Course of Criminology in Abidjan (1966) showed that there existed some keen

interest for a modernization of criminal law and institutions, specially under

the influence of the « Mouvement de défense sociale nouvelle ».

Another example of the differences seen from a criminological point of

view is that however poor it may be the criminal statistical material exists in

the English-speaking part of Africa, while its administrative quality or even its

mere existence may be wanting for French-speaking regions.

| consider these variations as a challenge or even as an incentive to the

But to

development of a cross-cultural criminology inside sub-Sahara region.

— 191 —

achieve success, | believe that only a theoretical and methodological standpoint

as the one advocated in the first part of this paper can lead us to appropriate

returns.

Let us for instance take the traditional factorial approach with the

famous « broken home » factor in juvenile delinquency.

Van Luyk and Giel

(1968) reached some rather negative conclusions on a sample of Ethiopian

schoolboys.

K. Weinberg (1964) in Ghana had to reshape completely the

category since cohabitation was not the rule for husbands and wives among

the Gas.

On our behalf, we had to reconsider completely the « physical sepa-

ration factor » since, at least, among the Bakongo it is very frequent to see

boys spend considerable time with other parents than father and mother,

for various reasons which can sometimes be most positive to their socialization.

So, the first object of research is to consider the socialization process, success-

ful or not from a delinquent non-delinquent point of view.

In this cross-cultural perspectives, how should we identify the key-pro-

blems of priorities ?

Of course, systems could be described, and with this concept we cover as

much the criminogenic process as the social reaction process.

Therefore, some

standardized

This

IS

techniques for collecting data should be designed.

why we plan at Lovanium University a manual of research in criminology,

specially in consideration to developing countries.

But there must also be some kind of contact with the daily penal routine

and research.

This is why vital priority could be accorded to organisation

for criminology.

Just as it has been the case in the first years of existence

of the Montreal Institute of Criminology in Canada.

'We should not be ashamed

to sell criminology to those who need it, as long as it is not at any price, and

specially as long as buyers are sensitive to the valuable effects of the theoretical

approach. This is a most difficult task which could be better realized by natio-

nals.

But this point should perhaps not be overstressed. After all a lesson comes

from Britain where three great central Europeans gave its impulse to what we

usually refer to as English criminology.

ll. — Let us now examine some of the technical problems raised by

various aspects of data collecting.

The most arduous field is perhaps the one

of psychological testing, but it is a too specialized question to be studied

here, and besides much too dependant on some necessary progress in a basic

science as psychology.

An example will suffice to indicate some main diffi-

culties.

‘We were working with boys unaccustomed with paper-pencil writing

performance, and anxious to have a rough indication of some data on 1.Q.

and impressionistic but useful emotional data.

So we chose the Draw-a-person

test of GOOD ENOUGH.

'When we computed the rank-correlation between

the ages of our lads and their 1.Q. performance we obtained a negative

Of course we had

relationship, statistically significant at a fait level (.005).

no standardization for Congolese subjects.

But after studying the distributions,

it seemed that the older boys had also the lowest results they were probably

poor indications for a training school and should have been processed to a

— 192 —

vocational programme.

However, we would like to gather further details on

the intelligence of the boys, not so much as an eventual etiological factor but

as a treatment indication.

But what tool can we use ? RAVEN matrices, | have

myself experimented on a sample of Congolese University Student sample are

not culture-free.

Let us discuss some more definitely criminological problems in techniques

of research.

They should be useful to the general subject of our course and

therefore be pertinent in areas of the kind

treatment theories, sentencing

problems,

evaluative research.

Clearly, we can discuss the two classical

approaches in criminology : descriptive statistics and case studies.

DESCRIPTIVE STATISTICS

The figure of unreported crime is certainly much larger for Africa than

figures for Europe or the U.S.A., in urban areas as in rural areas.

Quite a

lot of factors pertaining to distances, police skills, and mostly rapport between

the people and authorities, and acceptability of the legal system can explain

this expected fact.

Probably self-reporting techniques in the dark-number

evaluation research are not adequate in most social areas, even in schools.

But these questions have been thoroughly studied by Tanner and Boehringer

for East Africa and we are more anxious to discuss the status of we have or

could ameliorate than that we shall anyhow never have.

Let us first state some accepted principles in descriptive criminal statistics

that should be taken into account.

e

African territories are large, communications difficult, in some coun-

tries the police is very untrained and not infrequently uninterested in main-

taining public order.

| personnally see no interest in pursuing expensive and

extensive recording of data just for the sake of going into figures of long

monotonous and comparable series.

If new techniques may be experimented,

sampling or areal methods could be used to begin with.

—

A second problem is the Index of Crime.

During a century crimi-

nology has faced a very arduous question of measure.

Nobody could

reasonably answer to questions bearing on the intensity of criminality for a

given time or region for comparative ends.

In other sciences one could easily

answer to questions such as what bring the more warmth a pound (1 b.) of

sugar

or

an overcoat ?

But no criminologist seemed able to solve the

following problem

in a given region there is a considerable rise in homicide

and sexual assaults but all kinds of property offences have lowered.

Is this

situation worse or better from what is was before ? Very complicated techniques

of indirect measures have been elaborated, but the results suffered from the

very artificial technicalities of the suggested methods.

In 1964, Professor

Sellin and Professor Wolfgang issued new techniques for computing an Index

— 193 —

of delinquency in Philadelphia.

| shall limit the dicussion in this paper to

three points :

a)

The core of the Sellin and Wolfgang technique is to find the common

measure of different types of criminal behaviour in the opinion of the

general or of some representative samples of the public.

After all crime

is only as stated by Durkheim an act that hurts strong feelings in a

society, therefore, members of a society should be able to express these

feelings by some measurable means ;

b)

That this hypothesis is true for Africa we have tried to prove in replicating

the Sellin and Wolfgang technique among university students in Kinshasa

with satisfying results.

But of course, University students are not the

appropriate sample for the expression of strong feelings in a African

society. They are a too particular part of society.

Therefore, with

representative samples from all parts of the cultural spectrum graphic

scales may appear preferable to numerical ones when one requests the

expression of a rating ;

<)

One very important characteristic of the Sellin and Wolfgang approach is

that the criminal event is treated with some of its criminological qualities

(victims, damage, use of violence...).

This gives us new consistence to a

First line workers in the field and specially

scientific approach to crime.

patrolmen could be trained in reporting crime in an appropriate manner.

CASE STUDIES

Let us now turn to case studies.

| believe that a very thorough study

of cases on a very complete manner, following the Thomas and Znaniecki

tradition is of very great value to present African Criminology.

Research work

of that type is scarce and we may point to 'W. Clifford’s Profiles in Crime,

ni Lusaka as the nearest approach to what we have in mind.

Why are case studies so important for Africa ? The main reason, | think,

is that the classical approach by the variables (be it of the independent-

dependent type, or of the field approach type as in factorial analysis) is at

present nearly always unreachable.

Let us take the case of Kinshasa, the

first demographic data since Independence (1960) were gathered in 1969

so that crime rates could only be very approximately computed for the prece-

ding years.

The socio-economic data that could be useful to the criminologist

are mostly non-existent.

Another reason is that with a case approach one may uncover some

patterned traits that have particular relevance in crime explanation as has

been shown by the Chicago School with Burgess and Shaw.

In fact, | some-

times feel that our situation in Kinshasa is very near to the situation sociologists

met in the 1920's with the development of urban studies.

— 194 —

I should now like to conclude after having pointed to this similarity.

Two apparently contradictory aspects could be stressed.

First, we thought

that in an African urban setting, no criminological approach could be limited

to the legal definition of crime, or even to the traditional criminological field.

This is why our Centre is called “Centre de Criminologie et de Pathologie

sociale”.

Specially we study the mental illness processes.

We are mainly

interested in showing how social labels of deviants are allocated and the

different paths the people so designated follow.

The second point is that it would be an error to see African urban life

as the field for the sociopathologist.

Traditional scholars have spoken of

social disorganization, modern ones speak of anomie—not without reason

I think, but | would not advocate a generalized approach of the African social

reality with those concepts or models that are appropriate to some of its

parts only.

I would back very strongly the PLOTNICOV approach in his study

of Jos (Nigeria) who suggests that African urban life is complex, but not

disorganized.

But | readily admit this is the point of departure of a new

demonstration.

| only wanted to mention it because it may serve as a useful

delineation of the sociopathologist’s work in Africa, who otherwise may very

well be overwhelmed by the burden of his task, and this would be a very

bad beginning, however sound one's methods may be.

—_— 10 -

Concept and Basis of Criminal Responsibility

by the Honourable Minister of Justice AKINOLA AGUDA

a Judge ot the High Court of the Western State of Nigeria

I. — INTRODUCTION

The upheaval to the political, economic and social setting of the people

of this country which has occurred within the past decade or so—and more

particularly within the past three years—has made many people call not only

for the enlargement of the scope of the criminal law and criminal responsibility

Not

but also for harsher and what they regard as more deterrent punishment.

only in private conversations but also in the local press have people made

suggestions with all

earnestness that capital

punishment should be made

available for many more offences, that executions of persons convicted of

certain offences should be carried out in the public, and that the punishment

for certain offences like “Indian Hemp” offences, motor traffic offences,

highway robbery and burglary should be escalated.

There is no doubt that

the people who made these calls felt genuinely concerned with the public

safety but it is clear that such calls have been based on sentiments rather

than on established facts, as no one has shown that these harsher and more

barbaric punishments would inevitably lead to a reduction in the rate of the

particular crime.

But our experience of recent points unmistakenly to the

conclusion that has been repeated often and often by criminologists all over

the world that harsh and barbaric punishments do not necessarily reduce the

incidents of crime.

| refer in particular to the Indian Hemp Decree, 1969 (1),

which prescribes death penalty for cultivating Indian hemp and it is clear that

it was after the promulgation of this Decree that there has been a sharp rise

in cases of such cultivation at an alarming rates.

Similarly, the Western

still

or

Driving

State of Nigeria

born Homicide by Meckless

Dangerous

(Summary Trial and Punishment) Edict, 1968 (2), prescribing a minimum of ten

years and a maximum of life imprisonment for causing death either by reck-

less or dangerous driving of a motor vehicle has not led to any decrease in

the rate of incidents of that crime.

Within the past year or so, there have been riots, arsons and murders

by groups of people within certain areas in circumstances which made is difficult

(1) Decree No.

19 of 1966.

It prescribes a minimum of 21 years imprisonment

even though it has been said that on the available evidence, Indian

emp is much

see 1969

less dangerous than opiates, amphetamines, barbiturates and even alcohol

Crim, L.R. 57.

(2)

Edict No. 7 of 1968.

for the police to detect the actual culprits and in consequence some people

have called for the enlargement of the scope of responsibility.

They have

advocated that since it has not been possible in these cases to detect the actual

culprits, it will be necessary to hold responsible all persons from the particular

area where the rioting or the arson or the murder has occurred—a sort of

vicarious criminal responsibility.

In this call, people are not sure whether they

advocate criminal or civil responsibility, but they have argued that at least all

inhabitants of the particular area should be made to “pay” for the damage

caused by their fellow citizens.

If one were to agree that ““payment’ in this

respect should include criminal responsibility, then we would be opening new

and dangerous avenues for criminal responsibility.

And yet people have made

these suggestions.

This will be in addition to the traditional responsibility of

each person for his own crimes.

|

have mentioned all this to show what

In these circums-

dangerous paths we are treading or being urged to tread.

tances, it becomes urgent and imperative that we examine once again the

basis and the concept of criminal responsibility.

Although it is my duty to

do this in this paper, it is, however, not part of my duty to examine and

consider the pressure being exerted by the general public for the enlargement

of criminal punishment.

| have the duty, at least so | suppose, to examine in

this paper the traditional basis and concept of criminal responsibility and to

suggest if necessary the widening or the narrowing of these in any particular

field, bearing in mind the developments which have taken place and are taking

place not only in the political, economic, and social aspects of our life but

also in the fields of other sciences in the past few decades or so.

About a decade ago, Friedman wrote in his admirable book, Law in a

Changing Society (1953) (3) :

“The State of the criminal

law continues to be—as

it should—a

decisive reflection of the social consciousness of a society. What

kind of conduct an organised community considers, at a given time,

sufficiently condemnable to impose official sanctions, impairing the

life, liberty or property of the offender, is a barometer of the moral

and social thinking of a community

Hence, the criminal law is

particularly sensitive to changes in social structure and social thin-

king™.

With this | am in full agreement, and | doubt if it is possible for any one

to disagree.

And | must add that not even the stress of military rule for

4 years, and the strain of civil war for nearly three years, have altered in any

material way the views of Friedman in the Nigerian context, except that the

political and economic situations of this country have played some prominent

parts, in recent times, in the fields of criminal law and criminal procedure.

In spite of what | have just said, however, it is quite clear that the courts

of this country still regard the traditional basis of criminal responsibility under

(3)

Law in a Changing Society (1959), p. 165.

197 —

the English common law as binding generally either in the day to day adminis-

tration of the criminal law or even in criminal cases brought under the emer-

gency legislations (4)

We therefore must now turn our attention to the

examination of that basis

1

— BASIS OF CRIMINAL RESPONSIBILITY AT COMMON LAW

The traditional basis of criminal responsibility under the English common

This

law is rooted in the maxim, actus non facit reum, nisi mens sit rea

involved at the early development of thet law that there could be no criminal

responsibility without mens rea (i.e. a guilty mind) of the accused and it was

thought that it must also be possible to assign to the accused some moral blame

for his act (5)

But as Stephen pointed out in 1883 the maxim

“Is frequently though ignorantly supposed to men that there cannot

be such a thing as legal guilt where there is no moral guilt, which

is obviously untrue, as there is always a possibility of a conflict

between law and morals (6)”

In this view therefore, criminal responsibility is not based en moral res-

ponsibility, or at least not entirely on it

And the problem is whether we can

or should detach criminal responsibility entirely from moral responsibility

The next point which emerges from the English common law traditional

basis for criminal responsibility is the idea whether or not we should adhere

strictly to the requirement of mens rea in all cases

In view of the political

social and economic development of the 19th century, the courts found that

to adhere to the traditional basis in all cases would be to put a clogg in the

wheel of that development and therefore caused serious erosions into that

basis under the guise of statutory interpretation

In some cases they jettisoned

overboard the idea of mens rea and the problem now is whether the courts

have not done violence—too much violence—to the law in some cases (7)

and whether the time has not arrived when we should re-consider afresh the

idea of strict responsibility, that is, criminal responsibility without mens rea

There is no doubt that criminal responsibility based on mens rea is or in

fact must be intimately connected with the mental state of the accused

And

mental state is conditioned by the stage of mental development of an infant

or/and the state of mental health of an adult

In this respect infants of below

See e.g. Chief A.M.F. Agbaje v. Commissioner of Police, Ibadan High Court

Suit No. M/22/69 dec1ded on

rovisions of the Armed Forces and Police (Special Powers)

ecree, No. 2

1967

and’

Western State Court of A

udgment in the case

CAW/81/69 dated 27-8-

5)

W.T.S Sta]lybrcs, Modern Approach to Criminal Law, p. 406

(6)

Stephen, A. History of the Criminal Law of England, Vol. 2, p. 95

(7)

See for example R. v. Bxshop (1880) 5 Q.B.D. 259 ;

Cundy v. Le Cocq (1884)

13 Q.B.D.

207 ;

Parker v. Alder, 1899,

— 198 —

stated ages have been held in many systems of law to be immune from criminal

responsibility.

The age of exception from criminal

responsibility must of

necessity be an arbitrary one based at the best on our current views of the

psychological development of the infant.

The traditional English common law approach to the problem of the

effect of mental abnormality on criminal responsibility has been epitomised

in the McNaughten Rules which, rather too slowly, are being modified from

time to time.

Another possible factor of exception from criminal responsibility

is intoxication.

The traditional English common law approach the question of

intoxication is exemplified by a remark made in 1551 during the hearing of

the case, Reninger v. Fogossa (8) to the effect that

“If a person that is drunk kills another, this shall be a felony and

he shall be hanged for it, yet he did it through ignorance, for when

he was drunk he had no understanding nor memory ; but in as much

as that ignorance was occasioned by his own act and folly, and he

might have avoided it, he shall not be privileged thereby”.

But we have gone a long way from 1551, and the principle of mens rea

has been called in aid to whittle down the rigours of the common law in this

regard.

All above problems involved in the basis and concept of criminal respon-

sibility as it at present exists—the problems of mens rea, morality and the

criminal law, the responsibility of the infant, mental abnormality and intoxi-

cation—are the problems | wish to touch upon very briefly in this paper.

As much as possible, | shall consider each problem in the light of Nigerian

criminal law.

Ill. — MENS REA AS A BASIS OF CRIMINAL RESPONSIBILITY

There is no doubt that Lord Kenyon, C.J., stated the position under the

Common law, as we have seen, quite succintly in 1798 when he said in

Fowler v. Paget (9) :

“It is a principle of natural justice and your law that actus non

facit reum, nisi mens sit rea.

The intent and the act must both

concur to constitute the crime”.

And as Professor Shallybrass has pointed out :

“In the old cases, mens rea did involve moral blame, and did mean

a guilty mind” (10).

(8)

(1551) 1 Plow. 1, at 19; 75 E.R. 1, at 31.

9)

(1798) 7 T.R. 509, at 514 ; 101 E.R. 1103.

(10) Modern Approach to Criminal Law, p. 406.

=~ 400 <

For a very long time, the courts adhered strictly to this view of mens rea

and held that no offence was constituted where no moral blame could be

attached to the conduct of an accused person, and also where the accused

could not be held to have had a guilty mind. Thus in Hearne v. Garton (11),

the defendants were prosecuted for an offence of sending vitriol by railway

without marking the nature of the goods on the package.

They had been

misled by a description stitched on the package by the original sender and

had innocently sent the package under a different description.

It was held

that the defendants could not be held liable in the absence of mens rea as

defined above.

Similarly in the following year Cockburn, C.J., decided in

R. v. Sleep (12) that the defendant, who was found in possession of naval stores

marked with a broad arrow, could not be found guilty when there was no proof

that he knew the stores to be so marked (13).

The Lord Chief Justice was

still at that time able to proclaim that :

“lt is a principle of our law that to constitute an offence there must

be a guilty mind; and that principle must be imported into the

statute (14)”.

However, by the turn of the century the courts had decided in a number

of cases (15) that mens rea in the form of guilty mind was unnecessary under

certain statutory provisions.

These offences usually referred to as offences of

strict responsibility have since become more common and the danger of adding

to their number is quite real.

And yet criminal responsibility not attached to

any culpable fault in the accused is nothing but antithesis to any form of good

democratic government.

Just as it is urged that the legislature should be

wary in creating offences of strict responsibility—in fact they should be

created only where not to do so would lead to economic and social stagnation,—

it is also urged, in the words of Lord Goddard, C.J. in Brend v. Wood (16)

that :

“It is of the utmost importance for the protection of the liberty of

the subject that a court should always bear in mind that, unless a

statute, either clearly or by necessary implication, rules out mens rea

as a constituent part of a crime, then court should not find a man

guilty of an offence against the criminal law, unless he has a guilty

mind”.

| shall come back again to the problem involved in criminal responsibility

without mens rea but meanwhile | wish to say a word or two on the meaning

of mens rea as “the intention to do the forbidden act with a full knowledge

of the circumstances” (17).

1)

(1859) 28 L.J.M.C. 216; 121 E.R. 26.

(12)

(1861) 30 L.J.M.C. 170; 169 E.R. 1296.

(13)

See also R. v. Hibbert (1869) 1 C.C.R. 84,

(14)

Embezzlement of Public Stores Act, 1198, s. 2.

See R.

v

Prince (1875) 1 C.C.R.

154 ; R. v. Bishop

Parker v. Alder (1899) 1 Q.B.D. 20; R. v. Duke of Leinster, 1924, 1

lélg80&115 Q.B.D. 259;

(16)

(1946) 175 L.T. at p. 307.

(17)

See Jerome Hall, General Principles of Criminal Law (2nd ed.), p. 83.

— 200 —

As Turner has indicated (18) :

“Intention denotes the state of mind of the man who not only foresees,

but also desires the possible consequences of his conduc

2o

It is not my desire to analyse this definition at any length nor to consider

All that | wish

the often quoted presumption as to consequences of his act.

to state now on the present heading is that it should be remembered that in the

concept of mens rea motive has no relevance.

Motive is an ulterior intention

and its only significance in so far as mens rea is concerned is that once a

motive is clear, it becomes possible to infer the relevant intention.

Finally, | should point out that recklessness (or “rashness”, the word used

under the Northern States of Nigeria Penal Code), that is, advertent negligence,

is usually regarded as sufficient mens rea in certain circumstances.

Rashness

or recklessness is acting with the consciousness that forbidden consequences

may follow, but with the hope that they will not, and often with the belief that

the actor has taken sufficient precautions to prevent their happening.

The

criminality lies in running the risk of doing such an act with indifference as

to the consequence (19).

As it has also been pointed out recklessness is

And

in these

“an attitude of mental indifference to obvious risks” (20).

circumstances there is no reason why recklessness (or rashness) cannot be

held to be sufficient basis for criminal responsibility.

What is not so clear is

criminal responsibility based on negligence, and that is what | now wish to

turn our attention to.

IV. — CRIMINAL RESPONSIBILITY BASED

ON INADVERTENT NEGLIGENCE

The next problem for consideration is whether a system of criminal law

in which criminal responsibility is not based on inadvertent negligence can be

held to be adequate.

Inadvertent negligence is where

“The defendant was completely unaware of the dangerousness of

his behaviour although actually it was unreasonably increasing the

risk of the occurrence of an injury (21)”.

Thus when we say that a person is guilty of negligence—i.e. inadvertent

negligence—we imply two things : first that the person did not realise that

his conduct would bring about a proscribed harm, and secondly that his

conduct fell short of that of a reasonable man placed in his position.

(18)

J.W.C. Turner in Modern Approach to Criminal Law, p. 206.

(19)

Ratanlal and Thakore, Law of Crimes (21st ed).

(20)

Hudson v. Viney, 1921, Ch. 98, at p. 104.

(21)

Jerome Hall, General Principles of Criminal Law (2nd ed.), p. 114.

— 201 —

should

When considering whether we

retain negligence—inadvertent

negligence—as a basis of criminal responsibility we should bear two things

in mind

First that a large number of people are inherently negligent and the

fear of criminal sanction does not come into their serious consideration—or in

fact to their consideration at all

Such people have bad memories, are inherently inattentive and thoughtless

but are otherwise normal

Punishment of such people for purely negligent acts

is merely gratuitous with no useful end in view except possibly to serve as a

warning to others—a principle of criminal punishment which has now ceased

to be fashionable or canvassed

The second point to be borne in mind is that

in any event, the punishments prescribed for negligent acts are comparatively

light and my experience is that where a term of imprisonment is imposed, it is

always a very short one.

Again, although short prison sentences have not been

abolished in this country, as | believe they should, it must be frankly admitted

that the harm they are capable of doing to the prisoners and the society at

On the other

large far exceed any benefit society stands to gain from them

hand, it has been argued that although the punishment of a negligent person

may appear to be gratuitous, yet such punishment may serve to deter him

in respect of some other subsidiary rule of prudence the breach of which is

intentional” (22)

However, it is submitted that criminal responsibility based

negligence must be exceptional

At this stage it will

in my view, pay a lot of dividends to examine our

criminal law and see which are the offences which can be committed negli-

gently

For the benefit of some of this audience who may not be quite

familiar with Nigerian criminal law, | wish to make two points ; first that since

October 1

1960, all our criminal law is statutory

No one can be punished

for an offence unless that offence be defined in a written law (23)

The other

point is that we have two major criminal codes—one applicable to the six

northern states (24), and the other applicable to the six southern states with

local and various modifications (25)

Any careful examination of these Codes reveals quite clearly that most

of the offences requiring negligence are couched in a language which makes

liability depend either on recklessness (or rashness) or negligence.

I shall

mention a few examples in passing

Section 253 of the Northern States Penal

Code states that whoever causes hurt or grievous hurt by doing any act so

rashly or negligently as to endanger human life or the personal safety of others

is guilty of an offence

The punishment is one year imprisonment if hurt simpli-

citer is caused, but two years imprisonment if grievous hurt is caused

Simi-

larly, section 196 of that Code states that any person who “does any act in a

Glanville Williams, Criminal Law (2nd ed.), p. 123

(22)

(23)

S. 22 (10) of the Constitution of the Federation of Nigeria, 1963

(24)

Which I shall hereinafter refer to as the Northern States Penal Code.

For convenience m

reference in this

Pure

958,

r will be to the Criminal Code,

Cap. 42 of the Laws of the

‘ederation of Nigeria,

— 202 —

manner so rash or negligent as to endanger human life

2

is guilty of an

offence

The punishment is six months imprisonment

Similarly under sec-

tion 343 of the Federal Criminal Code, any person who, in a manner so

rash or negligent as to endanger human life or to le likely to cause harm

The punishment

to any person, does a number of things is guilty of an offence

is imprisonment for one year

Also an offence under section 18 of the Road

Traffic Act can be committed by the reckless or negligent driving of a motor

vehicle

Apart from provisions of the Codes similar to above, only few

There can

—very few—offences under both Codes require mere negligence

be no doubt that where an accused has been proved to have committed any

of these offences through recklessness (i.e. rashness as defined in the Northern

States Penal Code) the punishment to be imposed by the court is usually more

severe than when an accused has been proved to have committed the offence

through inadvertent negligence

Under the Road Traffic Act

if death results

from reckless driving that would amount to manslaughter but if it results from

mere negligent driving, then the offence committed is simply an offence under

the section (section 18 of the Act) and the punishment is only six months impri-

sonment

But under the still born and completely misconceived Edict of the

Western State which | have earlier on referred to (Edict No. 7 of 1968), such

a person is liable to ten years imprisonment at the least and life imprisonment

at the most

This sort of punishment is not only totally unjustifiable in an

age of automobiles, but it contravenes all known principles relating to criminal

responsibility and punishment

Here an offence requiring mere negligence is

to be visited by a much heavier punishment than one requiring recklessness

It must, however, be said that fortunately no prosecution has ever been brought

under this Edict

It is submitted that offences requiring mere negligence should

be punishable in all cases with a fine in the case of first offence, if for the

moment they have to remain with us

In this country, under both the Northern States Penal Code and the

Criminal Codes of the States of the South doubts have been expressed whether

the offence usually known as manslaughter can be committed through both

reckless and negligent acts

Now section 220 (c) of the Penal Code says that

whoever causes death by doing a rash or negligent act commits the offence

of culpable homicide” but one must read this along with the illustrations which

follow the provision

It is my view that upon a calm view of the provisions

what is required is rashness or advertent negligence

And under the Criminal

Codes any person who unlawfully kills another in circumstances not amounting

to murder has committed the offence of manslaughter (section 317 of the

Federal Code)

Under this provision, the courts of this country have attempted

to follow the English common law of manslaughter

My understanding of the

vast majority of the judicial decisions in this country is that manslaughter

requires recklessness, and that mere inadvertent negligence would not be

sufficient

The courts resorted to germs like “‘gross negligence

(26) “grossest

R

N.L.R

75 ;

v. Olise, 1961,

v. Akerele (1941) 7 WACA 56, at p. 59;

W.N

R. v. Balogun (1942)

16

— 203 —

negligence” (27) “criminal negligence” (28), but it is clear from all the cases

especially R. v. Nwokocha (29) and R. v. Olise (30), where Morgan, J., said

that “the degree of negligence required was one which amounts to recklessness’

that what is required is recklessness.

The only comment one can make on the

dictum of Morgan, J., is that, with the greatest respect, recklessness is not any

degree of negligence.

Both are mutually exclusive concepts and as Jerome Hall

has aptly put it :

“What is pertinent in penal theory is that no degree of negligence,

however great it may be deemed to be, can ever be reckless (31)”.

What therefore is required to constitute the offence of manslaughter as

indicated by Morgan, J., is recklessness not negligence of any degree, and

in this he has adequate support in other decisions of the courts.

V. — CRIMINAL LIABILITY WITHOUT MENS REA

If by mens rea we mean a “guilty mind® then it is clear that offences

which can be committed through mere inadvertent negligence must be held to

be offences not requiring mens rea, as inadvertence cannot, strictly speaking,

be regarded as a state of mind.

But in cases of that type, the criminal

liability of the actor, where such liability exists, lies as we have just seen, in

his failure to attain, in the performance of the act in question, the standard of a

reasonable man.

But there are other offences where even this condition is

unnecessary—where there is criminal liability irrespective of whether or not

the actor attained the standard of the reasonable man in the performance by

him of the act in question.

The offences falling within this category which

are usually referred to as offences of strict liability are very happily very few

indeed, and in most cases carry very small punishments.

Under our criminal law, the only serious offence carrying heavy penalty

which would appear to be an offence of strict liability is the offence of

abduction of girls under sixteen under the Federal Criminal Code, section 362.

That section provides that :

“Any person who unlawfully takes an unmarried girl under the age

of sixteen years out of the custody or protection of her father... is

guilty of a misdemeanour, and is liable to imprisonment for two

years”,

(27)

R. v. Adedoyin 1955/56 W.R.N.L.R. 69, at p. 72.

(28)

R. v. Ozegbe, 1957, W.R.N.L.R. 152, at p. 154.

(29)

(1959) 12 W.A.C.A. 453.

(30)

69, at p. 71.

l1961, W.N.LR. 1, at p. 5. See also R. v. Gordon Kojo and anor. 1958 L.L.R.

(31) General Principles of Criminal Law (2nd ed.), p. 116.

— 204 —

Then section 363 provides that in the case of proceedings in respect of

the offence thus defined :

a)

it is immaterial that the offender believed the girl to be of or

above the age of sixteen years ;

b)

it is immaterial that the girl was taken with her own consent

or at her own suggestion.

It will be remembered that these provisions are in consonance with the

decision of the Court of Crown cases reserved in the famous case of R. v.

Prince {32) which was a prosecution under the provisions of the Offences

Against the Person Act, 1861, section 55 (33).

The truth, however, is that

the offence created by these sections requires mens rea in the sense that the

offender must know that he is “taking” the girl out of the custody or protection

of her father, etc., and it must also be proved that the accused knew that

the girl was under the custody or protection of the father, etc. (see R. v

Meadows [34]).

Similarly if it is proved that the accused did on reasonable

grounds believe himself to be “having the lawful care or charge of the girl”

then there is no criminal liability (see R. v. Tinkler [35]).

In spite of these

submissions, however, it is suggested with respect that section 363 should be

repealed (36).

It only remains to say that there are no provisions similar

to section 363 of the Federal Criminal Code in the Northern States Penal

Code (37).

As | have indicated, apart from the offence of abduction just examined

there are only very few offences of stric liability under the two Nigerian Codes.

One such offence which has become of considerable importance of late is

section 197 of the Customs Act (38) which provides that :

“Every person who shall import or bring... into Nigeria any prohi-

bited goods”

shall be guilty of an offence.

It should be noted that more so now under the

stress of a most devastating war than ever before, to require proof of means rea

in cases of breach of this provision is to court trouble for the whole nation.

And in my view and with the greatest respect, Hubbard, J., was right when

in the case of Olayinka Dosumu v. Controller of Customs and Excise (39)

he said :

“An example of an offence of absolute prohibition is the offence

created by section 197 (a).

Anyone who imports goods into Nigeria

is absolutely bound by law to see that they are not prohibited goods”.

(32)

(1875) 1 C.C.R. 154

(33)

24 and 25 Vic., c. 100.

(34)

(1844) 1 Car. and Kir. 399; 174 E.R. 864.

(35)

(1859) 1 F. and F. 513; 175 E.R. 832,

(36)

See The Sexual Offences Act, 1956, 4 and 5 Eliz. 2, c. 11, 69, sec. 20.

(37)

See ss. 271 to 181 which deal with Kidnapping, Abduction and Forced Labour.

(38)

Cap. 48 of the Law of Nigeria, 1948.

(39)

(1956) L.L.R. 41.

- 205 —

And in Police v. Adamu Yahaya (40), it was held that once it is shown

that a vehicule is being used in conveying smuggled goods, the mens rea of the

owner is immaterial ; the vehicle is liable to be forfeited under section 24

of the same Act.

The other offences of strict liability are so minor and unimportant as not

of the

to require much searching investigation.

For example section 401

Northern States Penal Code which makes it an offence for a Moslem to be

found drunk in a public place carries a punishment of imprisonment for seven

days or a fine of one pound.

Even then it is my view that a person can escape

responsibility by showing that he did not intentionally take alcohol at all

(not that he did not intentionally get drunk); and in any event it is my view

that this and similar provisions of the Penal Code should be abrogated, for

reasons which | shall advance later on (41).

Before | end the discussion on this part of this Paper, | would like it

noted that very happily all customary law offences which could be regarded as

offences of strict liability are now offences requiring mens rea either in the

sense of intention or recklessness, whilst others require negligence.

It can be

safely said that although the notion of mens rea was generally recognised in

customary law (42), that concept was made use more in mitigation of punishment

than for the purpose of deciding criminal responsibility.

Homicide, for example,

did not, under customary law, depend upon the intention, recklessness or even

negligence of the accused.

A.K. Ajisafe in his well known little book, Laws and

Customs of the Yoruba People (43) said :

“Should a native doctor administer some medicinal mixture which

causes death of the patient, the doctor is responsible for the fatality.

It matters not whether it is by accident or no

7

Again stealing was an offence of strict liability.

In some parts of the

country, however, customary law was lenient towards persons who stole so as

to prevent immediate starvation not resulting from any default of the accused.

In that case even though an offence would have been committed, no punishment

would be awarded (44).

As | have said earlier customary law offences have

been abrogated and above offences in their statutory forms happily now

require mens rea.

(40)

(1942) 16 N.L.R. 99.

(41)

I shall discuss the problem of intoxication and criminal responsibility later.

(42)

See Elias, The Nature of African Customary Law (1956), p. 141.

(43)

(London, 1924), p. 28.

(44)

See AK. Ajisafe, Laws and Customs of the Yoruba People, p. 32

— 206 —

VI. — CRIMINAL LIABILITY AND MORALITY

Any casual perusal or our criminal codes reveals at once that our criminal

law does not tally with the current or even past motions of morals and of

morality of the people of this country.

There can be no doubt that this is

universally so.

It is true that the views of the legislative body for the country

at various times in regard to morals and morality have had profound influence

on our criminal law as it is today, but what the courts have to administer is

the criminal law as it is regardless of its moral content.

Only it must be

frankly admitted that wherever it is possible a judge as a human being cannot

help but bring into consideration his personal views of morality either in coming

This means

to decisions in cases before him or in awarding punishments.

that in general where no moral blame can be attached to an accused person,

then unless the legal provision is one of strict responsibility, a judge is very

reluctant to find him criminally responsible even though the actus reus of an

offence has been committed.

However the jugde’'s concept of morality has

nothing to do with the content of the law itself.

For example even if a jugde

feels it is morally wrong for a man to commit adultery with another man's

wife, there is nothing he can do if on a charge of rape he finds that the

woman consented to the sexual intercourse, and adultery is not a criminal

offence.

If however he finds that the woman did not consent, the punishment

he awards is usually dictated by his moral feelings with regard to the parti-

cular offence.

| have in my experience known of two cases of rape with

quite similar facts prosecuted within the same week, one by myself and the

other by a colleague of mine but before 2 different judges.

One judge

sentenced the offender to six months jail term and another judge sentenced

the other offender to a six years term.

In the maxim,actus non facit reum, nisi mens sit rea, it was in the olden

days thought that the mens rea content of it involved that some moral blame

must be attachable to the actor before he could be held to be criminally

responsible.

But Stephen, writing in 1883, made the obvious point that the

maxim

“Is frequently though ignorantly supposed to mean that there cannot

be such a thing as legal guilt where there is no moral guilt, which

is obviously untrue, as there is always a possibility of a conflict

between law and morals (45).”

As we have seen, a large number of offences of strict responsibility today

carry along with them no moral blame whatsoever

we have already touched

upon these.

Our concern here is to examine very briefly the moral content

of part of our criminal law and also to see if we can justify on grounds of

morals the punishment of certain conducts made punishable at present whilst

other conducts are left unpunished.

—_—————

(45) Stephen, A History of the Criminal Law of England, Vol. 2, p. 95.

— 207 —

There can be no doubt that the state is free to punish through the

criminal law whatever conduct it considers anti-social but | must say unequi-

vocally that | agree with the warning of Hermann Mannhein that :

“On principle to divorce the idea of punishment by the state from

moral consideration has in the long run, proved a fatal error.

Only

on a moral basis is it possible to argue successfully with the law

breaker. (46)”

This warning must be kept in mind by all persons called upon to legis-

late on criminal law.

Furthermore there is much danger in promulgating laws

which are opposed to the senses of morals and of morality of the people.

For if this is done there is danger in such laws being disregarded by the people

to the terrible discredit of the criminal law. And be it noted that the senses

of morals and of morality of a particular people may differ considerably

from those of other peoples and may even change from generation to generation.

| shall give one or two examples.

In some countries of the world bigamy

is considered a serious offence, as indeed our penal codes in this country

does.

But how does one expect the generality of the people to have sympathy

for a law which punishes some-one with seven years imprisonment for taking

a second wife during the subsistence of the first marriage whilst the vast

majority of the adult male population do this, some de jure and others de facto,

but both equally acceptable and recognised. The crime of the poor man who

is regarded as a bigamist by our Codes lies only in going before the District

Officer twice to recite certain words and putting his signature on dotted lines

instead of going before the Moslem Imam or the African Church of Christ

priest twice for the same purpose.

Surely, this is the reason why prosecution

for the offence of bigamy has been very rare indeed, and conviction for the

offence rarer still.

The truth can be found in the moral valves of the people

which do not see anything wrong in a man having two, three, four or more

wives.

It is therefore difficult to see the basis of the law of bigamy in the

Nigerian context except that it was imposed by the British Government in

Nigeria and it is now fashionable to have such a law in the statute books of

countries which consider themselves civilised.

Here it is perhaps necessary

to remind ourselves of the teaching of the German jurist Friedrich Harl von

Savigy who said that the law ought to be part of the complex of a people's

experience and character, manifest in the common feeling of inner necessity

with which the people regard it.

But it must be added that even where “the

common feeling of inner necessity” of a people is against certain behaviour

it does not follow that such a behaviour should be prohibited on the pain of

criminal punishment.

Now under the Northern States Penal Code the taking of alcohol by

a Moslem is a criminal offence but yet a vast majority of the Moslems in those

states still consume alcohol.

Section 403 of that Code provides that :

(46) Mannhein, The Dilemma of Penal Reform (1939), p. 21.

“Whoever being of the Moslem faith drinks anything containing

alcohol other than for medicinal purpose commits an offence.”

This law is wrong for many reasons.

First because it is discriminatory,

for in the other six states of Nigeria where there are millions of Moslems such

a law does not exist, and secondly, because it is wrong to impose criminal

punishment on a citizen because he professes a particular religion whereas

the other participants in the act for which he is punished goes scot free because

they profess a different religion.

And even in the six Northern States where

the Penal Code is still applied, citizens are free to change their religion and

their beliefs and disbeliefs at will.

The Constitution of Nigeria (47) takes

care of that and | agree that in these circumtances “the law can no longer

rely on doctrines in which citizens are entitled to disbelieve” (48).

Surely

drinking alcohol is such a universal social habit that | do not think that under

any circumtances the mere taking of alcohol should be visited with criminal

punishment.

Next let us look at the law relating to adultery. Under the Northern States

Penal Code, sections 387 and 388, sexual intercourse between an adult female

and an adult male person who are not husband and wife and who know or have

reasons to know that they are not husband and wite is prohibited on the pain of

two years imprisonment with hard labour together with a fine.

The offender may

even be subjected to haddi lashing under section 68 of that Code.

The law

may be called in aid to uphold either the moral or the religious sentiments of

the people but it is my view that to call in aid the criminal law in cases of this

nature—not only to punish adultery but also to punish fornication, that is,

where one or both of the offenders is not married to any one else— is totally

unacceptable in the modern world. We seem to have stretched the tentacles

of the criminal law too wide so as to make criminals of many of the citizens

of this country purely on religious or moral basis.

This should not be allowed.

However, | should not be misunderstood as saying that the law cannot be

For

altered because of the altered views of the people on aspects of morals.

generations the offences commonly referred to as buggery were severely

punished in England by death or by the offender being burnt alive (49).

The offences are

1) sexual intercourse between a male and another male

usually called homosexuality ; 2) sexual intercourse between a male and a

female otherwise than per vaginam, and c) sexual intercourse with an animal.

But in recent years the sense of morals of some of the European countries

would appear to have changed considerably, with the result that today in

England, under the Sexual Offences Act, 1967, homosexual act between two

consenting males 21 years of age and above is no more a crime if it takes

place in private.

This indicates one recent instance of how the change in

ideas of morality of the people have shapened the criminal law.

(47)

The Constitution of Nigeria, 1963, sec. 24.

(48)

Patrick Devlin, The Enforcement of Morals, 1968, p. 7.

(49) See Blackstone’s Commentaries on the Laws of England, Vol. 4, p. 218.

— 209 —

There can be no doubt that as the views of the people change on subjects

like abortion, suicide etc. the law will have to be modified accordingly but

the criminal law can never be called upon to enforce all rules of morals, nor

can any provision of the criminal law be held to be void merely because it is

contrary to the accepted rules of morals.

As Patrick Devlin has said, the

criminal law deals with the minimum standards of human conduct whilst the

moral law with the maxim.

In his view

“The instrument of the criminal law is punishment ; those of the moral

law are teaching, training, and exhortation.

If the whole dead weight

of sin were ever to be allowed to fall upon the law, it could not

take the strain.

If at any point there is a lack of clear and convin-

cing moral teaching, the administration of the law suffers (50)”.

VIl. — INFANTS AND CRIMINAL RESPONSIBILITY

It can hardly be argued that children of very tender ages should be held

criminally responsible for their acts.

It is common experience that the imposition

of punishment on children of certain ages is merely gratuitous without any

benefit whatsoever to the particular child who has misbehaved or to the society

at large.

The difficulty throughout the ages has been at what stage in the

development of the child should he cease to be immuned from criminal respon-

sibility.

It has been suggested that in England before the Norman conquest

the age was probably 12, (51) but subsequently the age of absolute immunity

became 7, and later still 8 (52).

The position today is that in England a

child below the age of eight cannot be found guilty of any offence ; between

that age and the age of fourteen he cannot be convicted of any offence unless

it is shown that he had capacity to know that what he was doing at the time

he was doing it was wrong, and that he ought not to do it.

This is in addition

to proving the mens rea and the actus reus of the offence charged.

Both the Federal Criminal Code and the Northern States Penal Code

contain provisions similar to above but age-divisions under both Codes are 7

and 12, even though the later Code came into operation on September 30,

Section

1960, about 27 years after the ages in England had been raised.

30 of the Federal Criminal Code provides that :

“A person under the age of seven years is not criminally responsible

for any act or omission.

A person under the age of twelve years

is not-criminally responsible for an act or omission, unless it is proved

that at the time of doing the act or making the omission he had

(50)

Patrick Devlin, The Enforcement of Morals (1968), p. 23.

(S1)

See A.W.G. Kean (1937) 53 L.Q.R. 364.

(52)

Children and Young Persons Act, 1933, 23 Geo. 5, C. 12, s. 50.

— 210 —

capacity to know that he ought not to do the act or make the

omission”.

Similarly section 50 of the Penal Code stipulates that

No act is an offence which is done

a)

by a child under seven years of age ;

b)

by a child above seven years of age but under twelve years

of age who has not attained sufficient maturity of understanding

to judge the nature and consequence of such act.

From above quoted provisions it is quite clear that children under the

age of seven years has absolute immunity from criminal responsibility.

Once

it is proved that the accused is a child who has not attained the age of seven

years that is a complete answer to the charge irrespective of its nature (53),

or the stage of maturity of the child.

It was held in Walters v. Hunt (54) that

the respondents who were charged with receiving from a child, aged seven

years, certain articles knowing them to have been stolen, could not be found

guilty, since the child could not be found guilty of larcery.

The position where the child has attained the age of seven but not the

age of twelve presents some difficulty.

It would appear that in addition to the

onus which lies on the prosecution to prove the requisite mens rea of the offence

charged against such a child, the prosecution has to prove that at the time of

doing the act or making the omission, the child “had capacity to know that

he ought not to do the act or make the omission” (if the charge is under the

Federal Criminal Code) or that the child had “attained sufficient maturity of

understanding to judge the nature and consequence of such act” (if the

charge is under the Penal Code) (55). The difficulty is this aspect of the law

is how to determine whether a child has attained that maturity

of intellect

required for a conviction.

The courts have not laid down any precise rules

as to how the difficulty can be solved but it is well established that the presump-

tion of lack of sufficient maturity of understanding becomes weaker and

weaker the nearer the age of the child concerned approaches twelve.

It has

been suggested in X v. X (56) that evidence that the child was a respectable

child who had been properly brought up, was sufficient to rebut the presump-

tion.

However, there is danger in pressing this too much, for it is capable of

giving the appearance of putting premium on bad home background.

And

What is more dangerous is that evidence which would not normally be admis-

sible in trials of adults, at least not before conviction, would be admissible

in the case of the child with a view to rebutting the presumption.

In fact in

F. v. Padwick (57) the court said that the evidence of the home background

—_—

(53)

Marsh v. Leoder (1863) 14 C.B. (N.S.) 535.

(54)

1951, 2 all E.R. 645.

(55)

See X v. X, 1958, Crim. L.R. 805.

(56)

1958, Crim. L.R. 805.

(57)

1959, Crim. L.R. 439.

— 211 —

and all the circumtances of the child are highly material to the question whether

the child has attained the requisite maturity for criminal responsibility, and

that these should be admitted in spite of the risk that it will disclose information

prejudicial to him.

It is respectfully submitted that a court which is faced with the problem

of deciding whether a child has attained the requisite maturity must make

allowance for the fact that the natural inclination of children is to steal or

to cause malicious damage or bodily injury. These offences suggest themselves

to children as soon as they are able to think at all.

Whilst lying to save

himself from punishment is perhaps a natural instinct in the youth, lying to

incriminate others may be evidence of some more mature understanding.

Before | leave the question of criminal responsibility of children, it should

be noted again that the age of twelve adopted by our two Codes is an arbi-

trary one.

Strictly speaking it has nothing to do with when a particular child

or even the generality of children are capable of distinguishing between right

and wrong—two very nebulous concepts.

A fully grown adult who is incapable

of making the distinction is not exempt from criminal responsibility unless he

can bring his case under the insanity rules (as we shall see later).

And as

Kate Friedlander has pointed out :

“It is often observed that children after the age of 5 or 6 feel

extremely guilty about small misdeeds and expect punishment of a

severity which their real parent would never have inflicted... (58)”.

But yet we do not hold them criminally responsible for their acts.

What

is required is something more than that a child is capable of knowing that a

particular act is wrong.

Finally, the suggestion made by Hermann Mannheim

about 30 years ago is worthy of note.

It is that :

“There ought to be no criminal responsibility whatsoaver in the case

of children under fourteen years, nor should they be brought before

a juvenile court as «care and protection» or «beyond control»

cases (59)”.

This suggestion should be compared with the sugestion of the Committee

appointed to look into the whole problem of criminal responsibility of children

and young persons in England to the effect that the age of criminal responsibility

in England be raised to twelve, but that children below that age should not be

brought before the court as “being in need of protection or discipline” (60).

It is suggested that for this country, more use should be made of the

Social Welfare Departments of the Government Ministries ; that children below

the age of twelve should never be taken to any criminal court be they juvenile

) Kate Friedlander, The Psycho-analytical Approach to Juvenile Delinquency

(1949), p. 47-48.

(59) Hermann Mannheim, Dilemma of Penal Reform (439), p. 194,

(60)

Report of the Committee on Children and Young Persons, 1960 Cmd. 1191.

— 212 —

or adult; and that any child who “is in need of protection or discipline

“should be dealt with not in any court of law but by special divisions of the

Social 'Welfare Department, in a more homely atmosphere than that of a

Court of Justice.

VIIl. — MENTAL ABNORMALITY AND CRIMINAL RESPONSIBILITY

In any consideration of the basis of criminal responsibility one is bound

to be faced with the problem of whether to base responsibility on the mere

commission of a prohibited act, or the mere omission to act where the law

prescribes an act, irrespective of the subjective factors—Ilike the intellectual

or mental condition of the offender, his genetic factors as well as the social

and environmental conditions in which he has been brought up. There is no

doubt that- this is a problem of extreme importance the solution to which must

depend largely on the views of the particular community with regard to the

balancing of the interests of the individual and that of the community ; but

here | shall confine myself to the intellectual and mental factors.

The problem

is of particular interest when we are considering the question of the effect

of mental abnormality on criminal responsibility.

In this regard two views

are plausible : first, that every one who has committed an offence, for example,

who has committed murder should be found criminally responsible and punished

accordingly regardless of any defect in his intellect or of any mental abnorma-

lity from which he may be suffering. The second view is that criminal respon-

sibility must be related to the intellectual and mental factors of the individual

offender.

Although our legal system as well as most modern legal systems

have tended to follow the path dictated by the second, it cannot nevertheless

be said that the first cannot be proferred or that it has no advocates.

In its

report, the Royal Commission on Capital Punishment in England said that

“The suggestion has sometimes been made that the insane murderer

should be punished equally with the sane, or that although he ought

not to be executed as a punishment, he should be painlessly exter-

minated as a measure of social hygiene. (61)”

This is significant, coming as it did after the attempt by Nazi German

Government to exterminate or sterilise large groups of people considered by

that Government as inferior or useless or otherwise objectionable on other

grounds during its hegemony in the thirties of this century.

Fortunately,

however, none of the democratic governments of Europe or of the Americas

or Africa has ever considered following this barbaric path.

In ‘Nigeria, the criminal law has at every stage provided for exception

from liability in respect of certain persons who are regarded as legally insane.

Under customary law insanity was a defence, but such insanity must be such

(61)

Report of the Royal Commission on Capital Punishment, 1949-53, Cmd 8932.

— 213 —

as is obvious to every one. Similarly, the classical Moslem jurists recognised

insanity as partial exemption from criminal responsibility.

Under that system

of law as was practised in the Northern States of Nigeria a killing by an

insane person was not considered as excusable homicide but as an accidental

homicide (khata) for wkich compensation (diya) was payable (62).

From early times in England, the Courts had recognised insanity as a

shield against criminal liability but as late as the 18th century it was still

thought that to escape criminal liability on the grounds of insanity a person must

have been so totally lacking in understanding and memory as to be comparable

to a wild beast or to an infant (63).

But before long it became clear that the

“wild beast” test could not be sustained and the problem that arose was as to

how to determine the stage of insanity at which a person should be allowed

exemption from criminal liability for his acts.

In the characteristic way of the

English common law, the rules for determining this were formulated piecemeal

as, and when, each case came before the courts for determination.

But in

the year 1843, the law was formulated in what have become famous through-

out common law jurisdictions as the McNaughton Rules.

The McNaughton Rules are not my main concern in this paper as they

All | wish to do at this

have never been directly applicable to this country.

stage is to quote the following passage from the directions given by the judges

in the McNaughton case, (64) the facts of which are too familiar to require

re-stating :

“The jury ought to be told in all cases that every man is presumed

to be sane, and to possess a sufficient degree of reason to be

responsible for his crimes, until the contrary be proved to their

satisfaction ; and that, to establish a defence on the ground of

insanity it must be clearly proved that, at the time of the commit-

ting of the act, the party accused was labouring under such a defect

of reason, from disease of the mind, as not to know the nature

and quality of the act he was doing, or if he did know it that he

did not know he was doing what was wrong.”

The other part of the Rules is that

“If a person commits an offence under an insane delusion, and is

not in other respects insane, he must be considered in the same

situation as to responsibility as if the facts with respect to which

the delusion exists were real.”

Although these Rules came under a barrage of powerful criticisms by

lawyers almost soon as they were formulated (65), it is noteworthy that they

(62)

See ].N.D. Anderson, Islamic Law in Africa (H.M.S.O. 1954), p. 203.

(63)

See R. v. Arnold (1724), 16 St. Tr. 695, at p. 765.

(64)

(1843) 10 Cl. and F. 200; 8 E.R. 719.

5

See Waring

Criminal Law, Vol. 2, p

'v. V[{an'ng (1848) 6 Moo. P.C. 341, end also Stephen, History of

— 214 —

withstood that barrage and were not altered in England in any significant

way until over a century after, that is, in 1957 (66).

This is so also despite

more recent development in scientific psychiatry and criticisms by practitioners

of that science.

| shall return to these later.

But meanwhile, | wish to state

what the law is in this country which is my main concern here.

Now sections 27 and 28 of the Federal Criminal Code provide as follows

27.

Every person is presumed to be of sound mind, and to have been

of sound mind at any time which comes in question, until the con-

trary is proved.

28

A person is not criminally responsible for an act or omission if

at the time of doing the act or making the omission he is in such

a state of mental disease or natural mental infirmity as to deprive

him of capacity to understand what he is doing, or of capacity to

control his actions, or of capacity to know that he ought not to

do the act make the omission.

A person whose mind, at the time of his doing or omitting to do an act,

is affected by delusions on some specific matter or matters, but who is not

otherwise entitled to the benefit of the foregoing provisions of this section,

is criminally responsible for the act or omission to the same extent as if the

real state of things had been such as he was induced by the delusion to be-

lieve to exist.

It is significant to note that since these provisions were embodied in the

Criminal Code in 1916, they have not been altered in any way by the Legis-

lature nor modified in any material way by the Courts.

They seem to have

withstood all the scientific developments of this century, just as the McNaugh-

ton Rules did until 1957.

In its characteristic apparently simple fashion, the

Northen States Penal Code, section 51, provides simply

“Nothing is an offence which is done, by a person who, at the

time of doing it, by reason of unsoundness of mind, is incapable

of knowing the nature of the act, or that he is doing what is

either wrong or contrary to law.”

Although the Code does not contain a provision for the presumption of

sanity, but it is my view that that presumption exists even under that Code (67).

It is my view that in this field of mental abnormality and criminal respon-

sibility it is possible to have a workable platform acceptable to both the lawyer

and the psychiatrist.

Yet it is difficult, for example, for a lawyer to understand

some of the criticims of the psychiatrists with regard to the presumption of

sanity. One of the apostles of Freud has referred to this presumption as “that

—_—

(66) The Homicide Act, 1957, 5 and 6 Eliz. 2 C. 11.

dence

(67) Through the combined effect of sections 137 (1) and 140 (3) (c) of the Evi-

— 215 —

hoary old legal dogma, the presumption of sanity.” (68)

Another has said

Yet

of the McNaughton Rules that “the rules are unintelligible to me...” (69)

another has said that “the right and wrong test... represent antiquated and out-

worn medical and ethical concepts.” (70)

On the whole system of the criminal

law a psychiatrist has said that

“the framework of the criminal law still savors too much of the

medieval to be brought readily into rapport with psychiatric con-

cepts of the present day.” (71)

To me as a lawyer | can hardly today conceive of a workable legal

system which is not based upon the sanity of the generality of the people,

and in this context it is difficult for me to agree that the presumption of sanity

is a “hoary old legal dogma.”

By reason of the presumption of sanity, it

It is a question

follows that the onus of proving insanity lies on the accused.

of fact for the jury to determine whether an accused was insane in the legal

sense.

The present law is that as useful as the evidence of the medical

expert or the psychiatrist may be, the court is not bound to act on it unless

it is unchallenged by any other evidence (72).

The onus on the accused

in this respect is not to prove his insanity beyond reasonable doubt but on

the balance of probabilities (73).

I, as a lawyer, can hardly see naything

radically wrong in this regard.

The similarities between the McNaughton Rules and the rules applicable

under the Federal Criminal Code and under the Penal Code are obvious from

the quotes above and | need not elaborate on them here.

I will only comment

in passing on certain other aspects of the provisions of our Codes.

The first

aspect for comment is the phrase “‘mental disease of natural mental infirmity”

(the Criminal Code) or “unsoundness of mind” (the Penal Code) of which an

accused must be suffering before he can escape criminal responsibility.

It

is my view that these phrases will cover all forms of mental abnormality ari-

sing from an actual disease of the mind, for example, senile psychosis, de-

pressive and all other types of psychosis, as well as all other conditions du-

This will

also

biously grouped together under the name “‘schizophrenia”.

cover the less serious disorders of the mind generically called neurosis and

the conditions known as epilepsy. (74) 'Whatever the position under the McNau-

(68)

Zilboorg, Mind, Medicine and Man (1943) 279.

(69)

(1936), p.

Ov"erholser, The Place of Psychiatry in the Criminal Law, 16 B.U.L. Rev

(70) White,

The need for co-operation between the Legal Profession and the

Psychiatrist in Dealing with the Crime Problem. 7 Am

of Psychiatry (1927), p. 493.

(71)

Zilboorg, op. cit., p. 274.

(72

See R. v. Rivett (1950) 34 Cr. App. R. 87; R

12 W.A.CA. 5

R. v. Matheson (1958) 42 Cr. App. R

145, at p. 151.

v. Edem Udo Inyang. (1948)

(73)

R. v. Echem (1952) 14 W.A.C.A, 158.

(74) See The Report of the Royal Commission on Capital Punishment (1949-1953)

Cmd. 8932, p. 3

and also Neustatter, Psychological Disorder and Crime (London,

1953), p. 18.

75)

See Glanville Williams, Criminal Law (2nd ed.), p. 447.

— 216 —

ghton Rules may be, (75) | take the view that cases of subnormality, that is,

idiots,

imbeciles,

feeble-minted persons

and moral

defectives

(76),

are

well

mental

and

““unsoundness

covered by the terms

“natural

infirmity”’

of mind” in the Criminal Code and the Penal Code respectively although these

points have not actually arisen for determination by the courts.

Now the Criminal Code says that a person can escape criminal respon-

sibility on the grounds of insinaty if at the time of the act in question he is

deprived of capacity by reason of a state of mental disease or natural men-

tal infirmity to know that he ought not to do the act.

The phrase “ought not

to do” is an ambigous one.

It may mean either what according to law a per-

son ought not do, or it may mean what according to moral standards of a

reasonable man he ought not to do.

In R. v. Windle, (77) the point which

came for consideration under the McNaughton Rules was whether “wrong” in

those Rules meant “contrary to law” or “morally wrong”, and the Court of Cri-

minal Appeal in England opted for the first view.

Lord Gaddard, C.J. said

A man may be suffering from a defect of reason, but if he knows

that what he is doing is wrong—and by ’'wrong’ is meant contrary

to law—he is responsible.

Counsel for the appellant suggested that the word 'wrong' as it is

used in the McNaughton's Rules did not mean contrary to law, but

had some qualified meaning—morally wrong—and that, if a person

was in a state of mind through a defect of reason that he thought

that what he was doing, although he knew it was wrong in law,

was really beneficial, or kind, or praiseworthy, that would excuse

him

2

These views of the Lord Chief Justice were, almost as soon as they were

expressed, repudiated and rejected in other common law countries (78) and

| hold the view that courts in Nigeria will not follow the decision in Windle's

case.

It is not even possible of conceiving the idea of following Windle's

case in the application of the Penal Code which, as we have seen, speaks

of “wrong or contrary to law.”

It is clear from this that “wrong” must bear

a meaning different from “contrary to law”, that is, morally wrong (79).

(76)

See Taylor's Medical Jurisprudence (11th ed.), Vol. 1, p. 548.

(77)

1952, 2 Q.B. 626.

(78)

See Stapleon v. R., 1952, C.L.R. 358 ; Jerome Hall, Principles of Criminal Law

(2nd ed.), p. 480. See also Norval Morris, “Wrong in the McNaughton’'s Rules in (1953)

16 Mod. L.R. 435",

(79)

In the case The State v. Kosenatu Atole, unreported, N. 1/14C/68, 1 took the

view I have herein expressed.

I said ¢I would find the defence of insamity established

if the accused although she knew that according to the law she ought not have killed

the deceased, if she nevertheless, by reason of her mental condition, did not know that

it was morally wrong of her to do so, or that indeed as in some cases of insanity,

that she was under a moral duty to kill the deceased.

In such a case I would find

that defence established as I would if I find that she did not know that according

to the law of the land she ought not to have killed the deceased? : (Judgment dated

8/1/69).

The Western State

ourt

of A

al

did not

hold

this direction

to be

incorrect

(Judgment in Appeal No. CAW/5/69, dated 26/6/69).

— 217 —

Even if the suggestion herein made be accepted tha

t“

ought not to do

in section 28 of the Federal Criminal Code means what according to moral

standards the accused ought not to do, and tha

'G‘

'wrong

in section 51 of the

Penal

Code means

morally wrong”, then we are still faced with another

problem—the problem of basing criminal responsibility on the ability of the

accused to decide between what he knows to be morally right and what he

This approach has been criticised by psychia-

considers to be morally wrong

trists on the grounds that the knowledge of right or wrong is not in fact an

After all

the

important factor in deciding a question of mental illness (80)

whole

person

of the subject is completely integrated and any serious men-

tal disease inevitably impairs all the main aspects of the subject's personality,

argue the psychiatrists

But it may be suggested that since the lawyer must

solve the problem in his own way, he may find an answer in the words of

Dixon, J., in the case of R. v. Porter (81) where he said

“We are not dealing with right or wrong in the abstract

The

question is whether he (the accused) was able to appreciate the

wrongness of the particular act he was doing at the particular time

What is meant by wrong is wrong having regard to the everyday

standards of reasonable people

But with the greatest respect this would appear to beg the question which

reasonable

is that it is scientifically falacious to apply the standard of a

m

”” to a person suffering from some mental illness since his whole “‘person

is affected by such illness, and that such illness surely affects adversely the

subject’s power to decide the rightness or the wrongness of his acts

Next we have to advert our minds to what has been described as

par-

tial delusion’ to which the above criticisms of the psychiatrists equally apply

How, it was further asked, could someone be under insane delusion but is

not in other respects insane under the McNaughton Rules, since at all events

In

his whole personality must be affected by any serious mental disease ?

this respect, | must confess that | find it difficult to profer an answer, except

to say that in my experience neither lawyers nor judges have made much use

of this “partial delusion

defence

Ovur law does not recognise the defence of diminished responsibility in-

troduced into English law by section 2 of the Homicide Act, 1957, and | wish

to say nothing about it

But the whole area covered by that defence and more

are covered by the defence of irresistible impulse which is available under sec-

tion 28 of the Federal Criminal Code

In 1915, Bray, J

directed the jury

thus, in R. v. Frayer (82)

“l am going to direct you in the way indicated by a very learned

judge, Fitzjomes Stephen, and follow his direction—that if it is

—

80) White, The need for co-operation between the Legal Profession and the

Psychiatrist in Dealmg with the Crime Problem, (1927) 7 A m. ]. of Ps.

(81)

(1933) 385 C.L.R

182, at p. 189

(82)

(1915) 24 Cr. App. R. 403

— 218 —

shown that he is in such a state of mental disease or natural mental

infirmity as to deprive him of the capacity to control his actions, | think

you ought to find him what the law calls him—*insane”, because

it seems to me, if there is such a disease of the mind, not caused

by any accident, but an actual disease of the mind, such as to de-

prive him of the capacity of controlling his actions, in my opinion

a jury should find him insane, if that is shown to have existed at the

time of doing the act.”

The similarity between this direction and the provisions of section 28 of

the Federal Criminal Code which was promulgated in 1916 quoted above is

too obvious for comment (83).

The defence was, however, subsequently re-

jected in England and in R. v. Kopsch, (84) Lord Hewart, C.J., said of it

“It is the fantastic theory of uncontrollable impulse which, if it were

to become part of our criminal law, would be merely subversive.

It is not yet part of the criminal law, and it is to be hoped that the

time is far distant when it will be made so.”

The main difficulty in the issue of irresistible impulse centres around the

problem as to whether a particular impulse was “irresistible’” or merely “unre-

sisted’’, and it is significant to note that since 1916 there has been only one

reported case in this country in which the defence has been raised, and suc-

cessfully.

That is the case of William Echen v. R. (85) in which the medical

evidence was to the effect that the accused might have known what he was

doing and that he was doing wrong but that he was not able to control his

actions, and the accused was found legally insane.

It has, however, been doubted if there is sufficient scientific support for the

theory of irresistible or uncontrollable impulse in regard to serious crimes

like murder.

According to Jerome Hall, some psychiatrists have said that

“genuinely compulsive acts, supported by clinical evidence are limited to

?

harmless matters like excessive hand-washing, counting windows and the like.”

(86)

If this were so the defence of irresistible impulse under the Criminal Code

is not sustainable ; and the real problem is whether there is sufficient evi-

dence from the psychiatrists agreed to by a majority of them from which we

can conclude that there exists that irresistible impluse capable of leading a

person who “knows what he was doing and that he was doing wrong”

to commit serious crimes like murder.

One can only pose a caveat—that in

this respect it will be dangerous for legal development to leap too much ahead

of established scientific knowledge.

(83)

See R. v. Nasamu (1940) 6 W.A.C.A. 74 where the similarities are pointed out

(84)

(1925) 19 Cr. App. R. 50.

(85)

(1953) 14 W.A.C.A, 158.

(86)

— 219 —

IX. — INTOXICATION AND CRIMINAL RESPONSIBILITY

If the problems involved in the concept of criminal responsibility with:

regard to persons suffering from mental illness are as immense as has just been

pointed out one would expect those involved in that concept with regard to

inebriates to be less immense.

In fact this is so, but the difficulty in this case

is the hostile attitude of the public to the drunkards which has made reformation

in the law difficult.

This hostile attitude started centuries back, and it was a

universal one.

According to Aristotle a person who commits an offence when

intoxicated deserves double punishment, because he has doubly offended,

first in being drunk to the evil example of others, and secondly in committing

the particular offence for which he stands trial (87).

The attitude of the

English common law in the 16th century was perhaps correctly stated by

Counsel in argument in the famous case of Reninger v. Fogossa (88) to the

effect that :

“If a person that is drunk kills another, this shall be felony, and he

shall be hanged for it, yet he did it through ignorance, for when

he was drunk he had no understanding nor memory ; but in as much

as that ignorance was occasioned by his own act and folly, and he

might have avoided it, he shall not be privileged thereby.”

This aftitude was also shared by the classical Moslem jurists who went

even further to hold that the mere consumption of alcohol is an offence against

the Shari'a

Under both the English common law, and the classical Moslem

law, the well known saying qui peccat ebrius, luat sobrius is appicable.

And

as lately as 1828, in the case of United States v. Drew (89) it was said that

the law should not permit a man

“To avail himself of the excuse of his own gross vice and misconduct,

{so as) to shelter himself from the legal consequences of such crime.”

However, under the principle of actus non facit reum, nisi mens sit rea,

the hostile attitude against the inebriates has become tempered down and it

has become recognised that, at any rate in cases requiring mens rea, there

would be no criminal responsibility if the accused was so drunk as not to be

capable of conceiving the requisit mens rea but | shall elaborate on this later.

The Federal

Criminal

Code proceeds in this

matter

by saying that

“intoxication shall not constitute a defence to any criminal charge” (section 29),

except as provided for in the section.

The arguments usually proferred in

support of this type of attitude are

(1) that a person may deliberately get

drunk so as to provide a shield against criminal liability after he has, in the state

of voluntary drunkenness, committed a crime ; (2) that a criminal may feign

and

itself morally

intoxication ;

(3)

that getting drunk voluntarily being

(87)

For a history of the defence of intoxication, see Singh (1933) 49 L.Q.R. 528.

(88)

(1551) 1 Plow. 1, at p. 19; 75 E.R. 1, at p. 31.

(89) 25 Fed. Cas. No. 14, 993 (1828).

— 220 —

wrong (90), should not be allowed as a circumstance for exculpation from

criminal responsibility.

Taking the third argument first one can hardly subs-

cribe to the view that today the moral wrongness in getting drunk is such that

it cannot form the basis of exculpation from criminal responsibility.

In so far

as the second argument is concerned it is doubtful if an accused will find it

any easier to put up the pretence of intoxication and succeed with a jury or

worse still with a judge sitting alone than to put up other pretence for example,

of self defence.

The first argument is even far more difficult to sustain as

it clearly overlooks the fact that intoxication may only render the task of a

deliberate criminal more difficult.

Here | cannot do better than to quote the

views of Jerome Hall on this point.

He says (91) :

“Since a normal person who planned to commit a crime would not

wish to incapacitate himself by becoming grossly intoxicated (and

that is the degree relevant to the most issues of penal liability),

the argument that prospective offenders would actually become

intoxicated ““as a shield” is even less persuasive.

Such professed

grounds of decision indicate bias against inebriate harm doers and

lack of knowledge of alcoholism rather than rational support of

the rule.”

As | have indicated it has now become well established under the mens

rea principle, that intoxication is a matter which affect criminal responsibility.

As Stephen J., pointed out in R. v. Doherty (92) :

“Although you cannot take drunkenness as an excuse for crime, yet

when the crime is such that the intention of the party committing

it is one of its constituent elements, you may look at the fact that a

man was in drink in considering whether he formed the intention

necessary to constitute the crime.”

The views of Stephen, J., in this respect are incorporated in the Federal

Criminal Code, as section 29 (4), but before dealing with that | wish to touch

upon other provisions of that section.

Section 29 (2) provides that :

“Intoxication shall be a defence to any criminal charge if by reason

thereof the person charged at the time of the act or omission

complained of did not know that such act or omission was wrong or

did not know what he was doing and :

a)

The state of intoxication was caused without his consent by

the malicious or negligent act of another person ;

(90)

Intoxication is not an offence under the Criminal Code but it is an offence

under the Penal Code, section 402, under which Code being drunk will therefore be

legally wrong.

(91)

General Principles of Criminal Law (2nd ed.), p. 531.

(92)

(1887) 16 Cox C.C. 306, at p. 308.

— 221 —

b)

The person charged by reason of intoxication insane, temporarily

or otherwise, at the time of such act or omission.”

In my view, this is one of the most intriguing provisions of that Code.

It attempts to equate the defence of intoxication to that of insanity, and in (a) it

nullifies the practical application of that defence.

In (b) it allows the defence

only where the accused can in fact succeed in establishing the defence of

insanity. Under (a) the state of intoxication must have been caused without

the consent of the accused or by the malicious or negligent act of another

person.

What consent refers to in this context is dubious—whether it is consent

to get drunk or consent to drink at all.

Suppose the act of the other person

is neither malicious nor negligent.

A doctor prescribes medicine, the proper

cure for the complaint of the accused, and the accused takes the medicine and

becomes intoxicated and commits an offence under circumstances coming within

As the law stands the accused cannot

the main provision of section 29 (2).

avail himself of the defence under section 29 (2).

The relevant provision of the Northern States Penal Code is not even

much better,

Section 52 of that Code states

“Nothing is an offence which is done by a person who, at the time of

doing it, is, by reason of intoxication caused by something adminis-

tered to him without his knowledge or against his will, incapable

of knowing the nature of the act, or that he is doing what is either

wrong or contrary to law.”

This, as it can be seen, has also, (as under the Criminal Code) approxi-

mated the defence to that of insanity, a situation which was seriously criticised

by Lord Birkenhead, L.C., in the House of lords in the case of D.P.P. v.

The Lord Chancellor said :

Beard (93).

“Neither should the learned Judge in my opinion have introduced

the question whether “the prisoner knew that he was doing wrong”

in a defence of drunkenness, where insanity was not pleaded.

It

is a dangerous and confusing question to put to a jury, for a

drunken man’s judgment upon such a question is very likely to be

impaired, and it might well be perplexing to a jury to determine

whether, if he knew what he was doing, he knew also that he was

doing wrong.”

These views do not seem to have been considered by the draftsmen of

the Code.

Next it will be necessary to refer to section 44 of that Code which

provides that :

(93)

1920, A.C. 479.

AN

“A person who does an act in a state of intoxication is presumed

to have the same knowledge as he would have had if he had not

been intoxicated.”

This throws on the accused the onus of showing that he did not have

It is submitted

the requisite knowledge at the time he committed the crime.

that although the section does not say so in terms in addition to intoxication

being relevant to the question of he knowledge of the accused it must be

held also relevant to the question whether or not the accused had the requisite

intent. This point was taken in the Indian case of Manindra Lal Das v. Emp. (94)

where the accused set up the defence of intoxication under a similar section

of the Indian Penal Code (95).

The trial Judge in his direction said :

“If an act is done in a state of intoxication and the intoxication

is voluntarily incurred, he is equally liable before the law as if he

had done the act in a state of sobriety.”

In the Court of Revision this direction was held to be inadequate.

Henderson, J., said :

“Now in my opinion that direction is entirely inadequate as a

statement of the law on the point.

The learned judge should have

told the jury that, as far as knowledge was concerned it must be

taken that the accused had the same knowledge as he would have

had if he had not been intoxicated.

There is, however, no such

presumption with regard to intention.

The learned Judge should

then have directed the jury that, if they were satisfied that he was

intoxicated at the time, they should take that fact and the other

facts into consideration in determining whether they were satisfied

that the intention alleged by the prosecution had been mad out. (95)”

This position is adequately covered by the provision of subsection 4 of

section 29 of the Federal Criminal Code to the effect that :

“Intoxication shall be taken into account for the purpose of deter-

mining whether the person charged had any intention, specific or

otherwise, in the absence of which he would not be guilty of the

offence. (96)”

But it is very likely, and | have no doubt that it would be proper for

the courts to disregard self-induced intoxication with a view to committing

a crime as was done in Attorney-General for Northern Ireland v. Gallagher (97).

In rejecting the pleas of drunkenness in that case Lord Denning said :

“If a man, whilst sane and sober, forms an intention to kill and

makes preparation for it, knowing it is a wrong thing to do, and

(94)

A.LR.

1937 Calcutta 432.

(95)

Section 86.

(96)

See also Nga Hpeik v. R. A.LLR. 1938 Rangoon 219, to the like effect.

(97

See R. v. Hansen Owarey (1939) 5 W.A.C.A. 66, where the case of D.P.P.

v. Beard, 1920, A.C. 479, was followed.

g

then gets himself drunk so as to give himself Dutch courage to do

the killing, and whilst drunk carries out his intention, he cannot rely

on his self-induced drunkenness as a defence to a charge of murder,

not even as reducing it to manslaughter.

He cannot say that he

got himself into such a stupid state that he was incapable of an

intent to kill. (98)”

The last point | wish to make under this heading is the problem of the

alcohol addict.

It is now generally accepted that addiction to alcohol may be

An

as a result of disease, either cogenital or one acquired later in life (99).

addict is one who cannot help taking alcohol even against his own better

judgment.

There is hardly any rule of law which can prevent him from taking

alcohol.

Where he commits an offence under the influence of alcohol he is

sorry on becoming sober, and decides perhaps never to take alcohol any more

in life.

But he soon falls back into his vice.

As Darling has pointed out (100) :

“These unfortunate persons know that if they yield to the temptation

of the first drink, all power of inhibition is lost.

They know that

they will go on and on with a spree of intoxication ending only

when the flesh rebels.

Such people drink in spite of loosing their

standing in society, their ability to hold positions and their physical

health.

The suffering of dependants is no deterrent.

During periods

of sobriety they grieve and repent but in a short time they are off

on another debauch.”

In my view these dipsomaniacs require sympathetic considerations of

their case by the society. They require medical treatment rather than punish-

ment, particularly where the offences they have committed are not serious ones.

As | have said somewhere else (101) :

“If, as it is now generally agreed, the main though by no means the

only, purpose of criminal punishment is utilitarian, then the infliction

of a fine or even of a term of imprisonment in the case of an

alcohol addict can serve but very litle purpose.

The end of

justice may be met by a conviction followed by the award of some

punishment.

But for the benefit of society more is required to be

done.

There should be power in the courts for compulsory medical

treatment in such cases.

It is realised, however, that this will mean

a major change in the rules of the common law and the Codes

relating to the defence of intoxication.”

It is my view that the change advocated is well worth it.

(98)

1961, 3 all E.R. 299.

(99)

1961, 3 all E.R., p. 314,

(100)

Darling, Inebriety : A classification (1942) 2 Q.]. Stu. Alc. 678

(101) Aguda, Principles of Criminal Liability in Nigerian Law (1966), p. 293

— 224 —

X. — CONCLUSIONS

In the preceding parts of this paper | have tried to analyse the basis

and concept of criminal responsibllity mainly under Nigerian law as influenced

by the English common law.

| have endeavoured to show that the main basis

of criminal responsibility is routed in the old maxim, actus non facit reum,

nisis mens sit rea.

The problems involved are how we can make the law

fulfil its proper role within the social and economic setting of the present

generation whilst bearing in mind the maxim ; and how the concept of mens

rea can be reconciled with the cases of persons suffering from some form of

mental incapability or the other, or due to lack of development of the intellect,

or the impairment of such faculty due to natural disease or to some self-

induced agencies, for example drunkenness.

There is no doubt that the classical basis of criminal responsibility both

under the English common law and Nigerian law is the performance of a

forbidden act with necessary intention to bring about the proscribed conse-

quences with knowledge of all relevant circumstances.

As | have indicated

this classical basis is certainly inadequate to cope with the social and economic

development requirements of this century, and in consequence offences of

negligence and of strict liability are now a necessity.

This is perhaps more

so in this country in the past few years faced as we are with the problems

created by people attempting the disintegration of this country not only through

political but also through economic means.

The only caveat that | can give

is that the courts should, in interpreting statutory provisions, bear in mind the

protection of the liberty of the subject, and should import the requirement of

mens rea unless it is clear from the statute that mens rea is to be excluded.

Whilst on this, it may well be proper to say that even in spite of the present

emergency in this country, the legislative bodies and even the courts should

note that more harm than good is usually achieved by unnecessary enlargement

of the basis of criminal responsibility or/and the imposition of severe punish-

ment,

In this regard, | have suggested the immediate repeal of section 363

of the Criminal Code which has the effect of making the offence of abduction

created by section 362 one of strict liability.

I have also suggested the

immediate repeal of the Homicide by Reckless or Dangerous Driving (Summary

Trial and Punishment) Edict, Edict No. 7 of 1968, of the Government of Western

Nigeria as not only providing abnormally heavy punishments but as being

contrary to and irreconciliable with known basis of criminal responsability

The lawyer is only called upon to administer the law as he finds it

regardless of its moral content.

Nevertheless, | take the view that we cannot

allow statutes which cut right across the moral concepts of the people and

which are therefore honoured more in their breach than in their observance

to continue to decorate our statute books only to be made use of in punishing

one or two unfortunate persons at the whims of the group in power at a

particular time.

In this connection, | have suggested the abolition of sections

387 and 388 of the Northern States Penal Code which punish fornication and

— 225 —

which provisions were made use of in the punishment of political opponents

during the period immediately before the end of 1965.

Again the law

punishing bigamy is difficult to understand in a country which recognises poly-

gamy and in which the vast majority of its inhabitants do practise polygamy

in one way or the other.

In this case. as | have pointed out, what a person is

being punished for is for going before a District Officer twice to marry two

different women instead of going before an Imam, or even a priest of the

African Church of Christ twice.

Therefore, | have suggested the abolition of

all statutory provisions punishing this offence.

Again, | have suggested the

abolition of the provisions of the Penal Code punishing the mere consumption

of alcohol.

| have made all above suggestions irrespective of the moral or religious

wrongness of a man having sexual intercourse with a woman whom he knows

not to be his wife, or his taking of two or more wives, or his consumption of

alcohol.

The law cannot and should not be made to protect the moral or

religious wishes or desires as such of some or even all the people through

criminal punishment.

A stronger and more compelling basis for criminal

liability and punishment is required.

As Patrick Devlin has rightly pointed

out “if the whole dead weight of sin were ever to be allowed to fall upon the

law (more so the criminal law), it could not take the strain”.

In the Nigerian

context the abolition of all these provisions can neither affect adversely the

family set-up of the individuals nor can it disturb the society at large.

In so far as the criminal responsibility of infants are concerned, all | can

usefully emphasise is that our law is completely out-moded in that it still reco-

gnises the punumbra to criminal responsibility of infants between 7 and 12

years of age.

It is suggested that children below the age of 12 years should

never be taken to any court.

The atmosphere even in a juvenile court with

a police prosecutor etc., is not sufficiently conducive to bringing about the

required end.

| believe that a specialised Division of the Social Welfare

Departments in collaboration with medical experts can deal adequately with

such infants who have been alleged to have committed offences or who are

alleged to need care and protection or to be beyond control.

The greatest difficulty in the field of criminal responsibility centres around

the law relating to the responsibility of the man who was suffering from some

mental disease or mental abnormality at the time he committed the offence.

Most of the difficulty has been woven around the lack of scientific knowledge

or rather unanimity of views of men specialised in that field of scientific

knowledge as to the stage of mental disease when a person may be held not

The rules laid down

to be responsible under the criminal law for his acts.

by English common law and known as the McNaughton Rules have been worked

somehow satisfactorily until fairly recent modifications.

Yet they have been

persistently criticised by psychiatrists who unfortunately would appear not to

have agreed among themselves as to the rules which can be worked by the

courts.

In this field, | take the view that any change in the existing legal

rules must be based upon fairly unanimously accepted views of psychiatrists.

— 226 —

Thus a rapport can in my view be found between the lawyer and psychiatrist

in this most difficult aspect of criminal responsibility.

The problems of the criminal responsibility of the drunkard are certainly

not as acute as those concerning persons suffering from mental infirmity or

mental abnormality.

In so far as the voluntary inebriate is concerned, the

harsh views of the law in bye-gone days have been tempered down by the

insistence of the courts on the requirements of mens rea in offences.

The

satisfactory position today is that drunkenness, whether voluntary or not is

a matter for consideration in deciding whether the accused was able to conceive

the mens rea of the particular offence charged in the absence of which he

cannot be held criminally responsible.

The only difficulty in this field relates

to the question of the alcohol addict or narcotics or drug addict (since under

the Criminal Code, section 29 (5), there is no distinction between drunkenness

as a result of the taking of alcohol or of narcotics or drugs).

| have in this

paper expressed the view that these dipsomaniacs require the sympathetic

consideration of their case by the society and what they require is medical

treatment

rather than criminal

punishment which in their case is merely

gratuitous,

In my view, we must henceforth pursue a deliberate policy of narrowing

the whole field of human behaviour covered by the criminal law, rather than

expand it, and we must not prohibit any conduct on pair of criminal sanction

except in really exceptional cases.

— 2127 —

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The Roie of the Police and (he Courts

in the Adminisiration of Criminal Justice In Nigeria

by C.O. OLAWOYE

Lecturer in Law, University of Lagos

I. — INTRODUCTION

The police and the courts play the dominant roles in the administration

of criminal justice.

Their respective roles are distinct, and at the same time,

complementary.

The former is charged with the prevention and detection of

crime, and the prosecution of offenders.

But our system does not allow the

police to award punishment, however convinced they may feel about the of-

fender’s guilt.

The police still have the added task of desonstrating, through

credible witnesses and by means of admissible testimony the guilt of the accu-

sed person before the court which in its detachment, will be able to give an

unbiased and acceptable verdict.

The award of punishment after a conviction

is also the monopoly of the courts though some cases the lower limit, and in

all cases, the upper limit is fixed by the law creating the offence. But the

court cannot initiate proceedings before itself.

Its jurisdiction can only be

involved when a person, usually the police, has brought an accusation be-

fore it.

The courts are however, not concerned with the trial of offences only.

They are also charged with the exercise of general control over the police and

other agents of the executive in order to protect the citizen suspected of having

committed a crime from an abuse of power by zealous policement.

The police

are not allowed to suppress crime or to bring an offender to justice by all

means.

They are subject to rules of procedure which reflect the values of

a democratic society.

These rules evolved, in the first instance, by the courts

of England are now embodied in our constitution and our criminal procedure

statutes (1), as well as the Evidence Act (2).

As a learned writer has aptly

remarked

“The substantive law of crime is intended to control the behaviour

of people who wilfully injure persons or property or who engage in behaviour

eventually having such consequences... Criminal procedure, by contrast, is

—e

(1)

Criminal Procedure Code, Cap. 143, Laws of the Federation and Lagos appli-

cable in Southern Nigeria, and the Criminal Procedure Code Law, 1960, applicable in

the Northern States

(2)

Cap. 62, Laws of the Federation and Lagos.

4990 =

The result is that the admi-

intended to control authorities, not criminals.” (3)

nistration of criminal justice is weighted heavily in favour of the accused per-

son

By the constitution of the Federation (4), he is presumed innocent until

the prosecution, usually the police, has proved the contrary and must be con-

victed unless his guilt has been demonstrated to the court beyond reasonable

doubt in accordance with the rules of evidence ; however probable his guilt

may appear to the judge.

Yet the accused person is entitled to keep mute

in the face of the accusation (5) and still the police are subject to all sorts of

restriction in its effort to obtain the necessary evidence for his conviction.

As the prosecution would not have proceded against an accused person unless

it is reasonably satisfied that the evidence at its disposal supports the guilt

of the accused (6), it is not unnatural for zealous police officers to feel that

the rules of criminal procedure are designed to obstruct them in their battle

against crime and criminal, and that the attitude taken by the law of pro-

cedure is unrealistic.

The reason for thus allowing accused persons such

latitude is far from being that the court is biased in favour of criminals.

The

rules were certainly not evolved to shield the wicked.

The legal attitude is

due to two main considerations.

Firstly, it is though that society has a larger

interest in ensuring that a person wrongly accused of a crime should not be

made to suffer punishment rather than in ensuring that the commission of a

crime is followed in every case by condign punishment.

As the same idea

is often put, it is better for nine guilty persons to escape punishment than for

an innocent person to suffer punishment, as there is no doubt that a man who

is made to suffer the indignity of imprisonment on account of a crime which

The second

he has not commited will owe society a justifiable grudge.

consideration which is also considered to be of primary concern is the fee-

ling, prevailent in democratic societies, that a man no matter what he has

done is entitled to the dignity of his person and respect for his private

and family life (7).

Thus police brutality is proscribed unless it is necessary

to meet force with force ; and unwanted invasion of privacy of citizens is dis-

couraged unless a judicial officer has authorised it.

It does not matter that

by such restrictions on the conduct of a police officer investigating an allega-

tion of crime vital evidence is lost.

As a distinguished American judge has

said

“it is a lesser evil that some criminals should escape than the Govern-

ment should play an ignoble role.” (8)

Those who feel uneasy about this atti-

tude of the law championed by the courts are constantly reminded of the expe-

riences which led to the development of the rules, and the sharp contrast bet-

But

ween the conditions of life in a democratic society and a police state.

these experiences we have not shared in this country.

The tendency here is

Skelnick

(3)

Justice Without Trial—Law Enforcement in a Democratic Society

(1966), p. 197

“)

S. 22 (1) Constitution of the Federation, 1963,

(5) S. 22 (9) Constitution of the Federation, 1963.

(6)

As a matter of Fact, a prosecutor who is not so satisfied may be quilty of

malicious prosecution.

(7)

See s. 23 of the Constitution of 1963.

(8)

Helmes

Olmstead v. The United States (1928) 277 US 438 at 470.

— 230 —

to see the rules of procedure as misplaced sentiments designed to ensure that

crime is not detected and to place an unnecessary obstacle in the way of the

This

law enforcement agencies in their arduous task of crime suppression.

consideration perhaps explains the significant departures from the traditional

approach introduced by the Criminal Procedure Code Law, 1960 applicable

in the Northern states by which some of the common law guarantees afforded

accused persons were removed, and the law made to reflect the needs of the

prosecution as well (9).

More recently because of the public outcry against

the procedure of the ordinary courts which are considered inadequate to cope

with the wicked the Military Governments of Western and Lagos States enacted

edicts providing for special tribunals consisting of soldiers, the police and a

member of the judiciary to try armed robbers and for the relaxation of the

rules of evidence with respect to such trials (10).

However, we were all wit-

nesses of the desperate efforts of politicians of the defunct civilian regime

to amend the constitution in order to be able to provide for preventive de-

tention.

However, because of the universed fear by persons brought up in

the English tradition of the police state those who prefer to look at the rules

of procedure from the point of view of the prosecution rather than from that

of the accused could not go the whole way and the more cherished liberties

are still tolerated.

The discussion of the interplay of the social interest in the prevention of

crime and the need to bring criminals to justice on the one hand, and the

social interest in the prevention of the abuse of executive authority, and the

need to curb the power which may corrupt, on the other hand is our first

task in this paper.

Our second task is the discussions of the ways and

means by which the police and the courts can use their sacred offices to pro-

mote the reduction in the crime rate by means other than by the prosecution

of transgressors or suspected male factors and other than by the administration

of punishment by way of imprisonment.

The first part involves the discussion

of the criminal process, and in that endeavour we shall confine ourselves to the

more salient aspects.

Il. — POLICE POWERS AND JUDICIAL CONTROL

Because a crime is an offence against the public interest, in theory, any

individual member of the society is entitled to arrest an offender and to ini-

tiate criminal proceedings against him in the courts, notwithstanding that he

(9)

The legislation has been described by Price, a former judge of the Northern

Region High

ourt, as a retrograde step—Price

«Retrograde Legislation in Northern

—Anderson

Nigeria», 1961 Mod. L.R. 604,

But its supporters have described it as a major advance

See also Olu Odumosu

«Criminal Law Reform in Nigeria

A Major Advance»

«Northern Nigeria Codes» 1961 Mod. L.R. 612.

%961 Mod. L.R. 616.

(10)

Robbery (Summary Trial and Punishment) Edict, 1967 of the Western State ;

Robber (Special Provisions) Edict, 1968 of the Lagos State.

— 231 —

is not the victim of the crime (11).

In practice, however, prosecutions at the

instance of private citizens are very rare, and in the few instances where they

occur, they are only in respect of minor assaults committed against the prose-

cutor or his close relations.

Indeed, one may be justified in saying that the

law does not particularly encourage private prosecutions, as the private prose-

cutor may be ordered to pay the costs of the accused if the latter is acquitted

(12).

He may also be ordered to pay the accused compensation if, in the

opinion of the trial judge or magistrate, the accusation is false and is either

frivolous or vexations (13).

Moreover, the private prosecutor may render him-

For these and

self liable in an action for damages for malicious prosecution.

other reasons, for example, the expense of prosecution, or loss of time, the

common practice is for the person complaining of the criminal conduct of

another to lodge a complaint with the police whose duty it then becomes, as

agents of the state, to set the criminal process in motion in relation to that

person.

The position of the complainant in that case is, in theory, not more

than that of an ordinary witness for the prosecution if the police eventually

decide to prosecute the offender (14).

Criminal prosecutions are also under-

taken by Government departments in respect of matters touching their inte-

rest, but they are confined to contraventions which are quasi-criminal.

Thus,

in practice, the invocation of the criminal process against an offender is usu-

ally at the instant of the police.

Even where, as it is in some cases, the pro-

secution is undertaken by the law officers (15) the initial steps are invariably

taken by the police whose duty it is to the offender and to carry out the

necessary investigations.

Arrest and Bail

With the exception of prosecutions for minor offences where the procee-

dings are initiated by summons, the decision to initiate criminal proceedings

An

against an offender is first communicated to him by his being arrested.

arrest involves the detention of the person arrested. As Lord Devlin has said

“there is no distinction between an arrest and detention.

Any form of physi-

cal restraint is an arrest, and imprisonment is only a continuing arrest.” (16)

Thus once a person has been arrested he remains in custody until he is dis-

(11)

There

is a slight departure

from

this general principle with

respect to

Northern Nigeria,

In the case of a public nuisance or the contempt of a lawful

authority of public servants only the person aggrieved thereby may prosecute the

offender.

In the case of adultery, only the husband or the father or guardian of an

unmarried woman concerned may prosecute the offender.

See ss.

141 and 142 of the

Criminal Procedure Code Law, 1960.

(12)

S. 255, C.P.A.

(13)

S. 256, C.P.A.

(14)

It as been held that the provision of the High Court Law which gave a party

aggrieved the right to appeal against the decision of High Court does not give a

complainant against whom the crime was committed a locus standi to lodge an appeal

as he had suffered no legal aggrievement—Akinbiyi v. Adelabu (1956) 1 F.S.C. 45.

(15)

Le. the Attorney General and his staff.

P

Devlin

(16)

Criminal Prosecutions in England (1960), p. 68.

— 232 —

The decision to arrest an offender

charged unless he is released on bail (17).

may be motivated by the desire to keep him off the track of police investi-

gation, but in most cases it is in order to ensure that the offender would be

available for his trial if the police eventually decide to prosecute him.

The power of arrest is not the monopoly of the police.

We have noted

that it is shared with him by private citizens, and in certain cases arrests may

be made by judicial officers.

Every person has the right to arrest anybody

who in his view commits an indictable offence (18) which is a felony or if

the offence (19) is committed by night, which is a misdemeanour (19).

A

person found committing an offence involving injury to property may be arres-

ted by the owner of the property or by his servants or agents.

The person

making the arrest must hand the offender over to a police officer or the

nearest police station (20).

If he fails to do this, the arrest becomes illegal

and he may render himself liable in damages for false imprisonment (21).

A judge or magistrate has power to arrest or to direct a police officer

to arrest any person who commits an offence within his division or district

and in his presence and commit him into custody (22).

Similar power of

arrest is given to a magistrate in respect of any person whose arrest upon

a warrant he could have lawfully ordered of the facts known to him at the

time of making the arrest had been stated before him on oath by some other

person. (23)

There is the further provision that the judge or magistrate may

subsequently deal with the offender in the same manner as if he had been

brought before hime by or under the direction of any other person (24).

This

provision enacted at a time when there was scarsely more than one magis-

trate assigned to a district has been justifiably criticised on the ground that

it tends to make the judge or magistrate an accuser and judge, contrary to

the values of a democratic society (25).

It is no doubt the ideal thing that

the judge who knows about a case should give evidence and not decide it.

For that reason one would be inclined to suggest that the provision, in so

far as it gives the judge the right to fair hearing. The consolation is, however,

(17) As to bail on arrest by police see infra.

(18) An indictable offence is one which is punishable with two years imprisonment

or 200 Pounds fine and is not declared by the law creating it as punishable upon

summary conviction.

All other offences are summary offences.

(19)

A felony is an offence which is declared by law to be a felony or is

punishable without proof of previous conviction with death or with imprisonment for

seven years.

A misdemeanour on the other hand, is an offence which is declared by

law to be a misdemeanour or ‘which is punishable by not less than six months and not

more than three years imprisonment.

(20) S. 14 (1), C.P.A.

(21)

It has, however, been held that the arrest is not illegal where the arrester

has taken the offen

1965, All N.L.R.

'der to the court rather tan to a police station—Nweke v. The State,

(22)

S. 15, C.P.A.

(23) S. 16 (1), C.P.A.

(24) S. 16 (2).

(

See Adaramola

Rights in Nigeria, 1968, p. 34.

«The Protection of Personal Liberty», Symposium on Human

- 233 —

that this power of arrest is little used in practice and the writer is not aware

of any case in which the issue has been raised (26).

Similarly, as it is only

the more public spirited citizens that would wish to mix himself up with police

affairs by effecting an arrest, arrests by private individuals is not a common

occurrence and in those few cases where they occur the purpose of the arrest

is to prevent the escape of the offender pending the arrival of the police.

Thus, a study of the law of arrest is substantially the study of the police power

of arrest.

Arrest by police

An arrest by the police may be with warrant and in certain cases without

warrant.

Every arrest in respect of which a warrant has been issued is law-

ful, but an arest without warrant is unlawful unless authorised by law. The

warrant of arrest is obtained from a judge, magistrate or a justice of the peace,

by laying a complaint or statement before him that the accused has committed

or suspected of having committed an offence.

The complaint or statement

but there is

must be on the oath of the complainant or of a material witness

no requirement that it must be in writing (27).

The judicial participation in the

arrest decision is intended to ensure that persons are not unnecessarily ar-

rested upon false or frivolous accusations, and the expectation is that the

judge should satisfy himself as to the reasonableness of the arrest in the

circumstances.

In practice, however, the judicial praticipation is not more than

a formality as the judge or magistrate almost invariably regards his function

as merely ministerial.

Thus, the arrest decision even in cases where a warrant

is required is essentially the responsibility of the police.

Thus, in order to avoid unnecessary hypocrisis, the police in Negeria are

granted wide powers of arrest without warrant by section 10 of the Criminal

Procedure Act in the case of the Southern States.

Similar powers are con-

ferred by s. 26 of the Criminal Procedure Code Law of the Northern States.

Further powers of arrest without warrant are conferred by s. 20 of the Police

Act (28).

By s. 10, 1, of the Criminal Procedure Act, the police may arrest

without warrant :

a)

Any person whom he suspects upon reasonable grounds of having commit-

ted an indictable offence unless the laws creating the offence provides

that the offender cannot be arrested without warrant (29).

b)

Any person who commits an indictable offence in his presence, notwith-

standing that the written law creating the offence provides that the offen-

der cannot be arrested without a warrant (29).

(26)

See, however, Onitiri v. Ojomo (1954), 21 N.L.R. 19.

(27)

See s. 23, C.P.A.

(28)

Cap. 154.

29

In Police v. Ogbomo, 1957, W.R.N.L.R. 200 it was held that knowledge of

the fact that the police are looking for a person at large in order to arrest him for

such a charge affords grounds for reasonable suspicion, and that the grounds for

reasonable suspicion may either be facts within his own knowledge or facts stated to

him by another person.

— 234 —

<)

Any person who obstructs the police in the execution of his duty or who

escapes or attemps to escape from lawful custody.

Any person in whose possession anything is found which may be reaso-

d)

nably suspected to be stolen property or who may reasonably be sus-

pected of having committed an offence in relation to such thing.

e)

Any person whom he suspects upon reasonable grounds of being a de-

serter from the Navy or Army or Air Force.

Any person whom he suspects upon reasonable grounds of having been

f)

concerned in any act committed at any place out of Nigeria, which, if

committed in Nigeria would have been punishable as an offence, and for

which he is, under any written law liable to be apprehended in Nigeria.

9)

Any person having in his possession without lawful excuse, any implement

for house breaking (the burden of proving lawful lies on him).

h)

Any person for whom he has reasonable cause to believe a warrant of

arrest has been issued by a court of competent jurisdiction.

i)

Any person who has no ostensible means of subsistence and who cannot

give a satisfactory account of himself.

i)

Any person found in the region taking precautions to conceal his presence

in circumstances which afford reason to believe that he is taking such

precautions with a view to committing an offence which is a felony or

misdemeanour.

The additional powers of arrest without warrant conferred by s. 20 of

the Police Act are in respect of :

a)

any person whom he finds comitting a felony, misdemeanour or simple

offence or whom he reasonably suspects of having committed or being

about to commit any felony, misdemeanour or breach of the peace ;

b)

any person whom any other person charges with having committed a

felony or misdemeanour ;

<)

any person whom any other person

i)

suspects of having committed a felony or misdemeanour ;

ii)

charges with having committed a simple offence if such other person

is willing to accompany the police officer to the police station and

to enter into a recognizance to prosecute the charge.

Sub-section 2 provides, however, that the provision of the section shall

not apply to any offence with respect to which it is provided that the offender

may not be arrested without warrant.

From the provisions, with the exception of cases in which the law specifi-

cally requires a warrant of arrest, the police officer scarsely need a warrant

of arrest unless he wishes to obtain one for his own security or where he does

not wish to take responsibility for the arrest.

— 235 —

A police officer may also use his power of arrest for the prevention of

the commission of offences or breaches of the peace.

We have noted the

provisions of s. 10 (1) i and j of the Criminal Procedure Act and s. 20 (1) a

of the Police Act to that effect.

Much more extensive power is given by s. 55

of the Criminal Procedure Act by which the police may arrest a person desi-

gning to commit any offence if it appears to the officer that the commission of

the offence cannot otherwise be prevented than by arresting the person (30).

In making an arrest, with or without warrant the person making it

must actually’ touch or confine the body of the offender.

It is not sufficient

to tell him that he is under arrest.

But the person arrested must not be unneces-

sarily restrained or he subjected to the degradation of being bound up or hand-

cuffed unless upon the order of a court, or the conduct of the offender

justifies such treatment.

The police may not use force unless the offender

takes to flight in order to avoid arrest.

In such a case, the police officer

making the arrest may use such force as is reasonably necessary to effect

the arrest, and where the offence is one punishable with death or imprisonment

for seven years may kill him if he cannot by any means otherwise be

arrested (31).

Bail on Arrest by Police

A person arrested upon a warrant cannot be released on bail by the

police unless the warrant contains an endorsement to that effect.

In the case

of an arrest without a warrant the officer in charge of the police station

to which the arrested person has been taken may admit him to bail if he

cannot bring him before a magistrate within 24 hours, unless the offence is

one punishable with death or is, in the opinion of the officer, of a serious

nature.

In such a case, he must be brought before a court as soon as

practicable (32).

Where the offence has not been fully investigated, the

officer in charge of the station may discharge the person arrested upon

his entering into a recognizance that he would appear at the station on a

specified date unless he is notified in writing that his attendance is not re-

quired (33).

In some cases where the police from fears that the arrested

person may interfere with their investigation, rather than releasing the offen-

der a ’holding’ charge may be filed in court to enable the court to make

an order confining him in prison custody (34).

The court may, of course,

release him on bail if the police does not show sufficient cause for his fur-

ther detention.

(30)

See also ss. 275 and 281 of the Criminal Code

(31)

S. 271, Criminal Code ; see also s. 272.

(32)

S. 17, C.P.A. See also s. 21 (3) of the Constitution of the Federation 1965.

Moreover, wilful delay in bringing a person arrested before a court for his trial is a

misdemeanour punishable with two years imprisonment—s. 130, Criminal Code.

33) S. 18, C.P.A. For the distinction between s. 17 and s. 18

See Police v.

Abiodun, 1958, W.R.N.L.R. 212.

(34) Very often the police abuse this power by employing it to effect the impri-

de

sonment of suspected criminals even when there is no evi

ence against him

— 236 —

Police Investigation

In some cases the decision to prosecute the person has been taken

before the arrest of the offender as in the case of a wanted person, or is

taken at the time of the arrest as in the case of an offender caught red han-

ded

Much depends on the circumstances of each case.

What is clear, ho-

wever, is that the prosecution will not bring up a charge in court unless it

is reasonably satisfied the evidence available will secure a conviction.

Accor-

dingly the police must make inquiries which may take one of two forms or

both, that is to say, interrogation of persons likely to give helpful information

and searches.

In either case the police are subject to rules of procedure,

which will be examined presently.

Under the Criminal Procedure Code, 1960

(35), a police officer to whom information about the commission of an offence

has been given is required to reduce the complaint or statement to writting.

The written complaint called the First Information report must be forwarded

to the court of competent to try the case.

Upon receipt of such information,

the court to which it has been given must give its direction as to whether the

police should proceed with the investigation, and if the court thinks fit, it

may begin to hold an equiry into the charge himself.

If upon inquiry the

court is satisfied that police investigation has not been thorough, the court

may direct the police to conduct further investigation and may give directions

as to the sort of evidence they would require to secure a conviction.

This

departure from the normal pattern is justified upon the ground that it promo-

tes police efficiency and that while it avoids the acquittal of an offender on

account of the ignorance of the police, it also assists the honest man from

being put to unnecessary inconvenience on account of a groundless accusation.

Let us now consider the legal limitations on the power of the police to obtain

evidence,

Interrogation

The first important thing to note is that no one is bound to help the

police in their inquiry.

This applies equally to witness and suspected persons.

Thus, while the police have the right to put questions to suspects and other

Simi-

persons, there is no corresponding obligation to answer police questions.

larly a police officer conducting an investigation cannot compel a witness to

follow him to the station, unless he arrests him.

A departure from this common

law position was made in Northern Nigeria by the Criminal Procedure Code

Law, 1960, s. 123 of which provides that a police officer making an investi-

gation may require the attendance before him of any person within the limits

of his police district whose evidence appears likely to be of assistance in the

case and may examine him orally.

That person is bound to attend at the

station and to answer the question put to him, subject to the qualification that

he may refuse to answer any question which tends to incriminate him.

The

(35) Chapters XII and XV.

237 —

Refusal without

police officer cannot, however, require him to take an oath.

reasonable cause to attend at the station on the request of the police officer

is an offence punishable by imprisonment not exceeding one month or a fine

not exceeding £ 10 (36).

In practice a witness scarcely turns down the request of a police officer

to attend at the station and to answer questions; and this is only prudent.

The normal attitude of the mind is that guilt is silent and innocence is eager

to speak.

Accordingly a person who is innocent and deliberately refuses to

assist the police when requested to do so may open himself to suspicion that

he is implicated in the offence and that may justify the police officer in arres-

ting him without a warrant.

If he chooses to bear the inconvenience of police

wrath, however, there is nothing the police can do.

The right of the police to interrogate an accused person is subject to

more strigent rules.

Like in the case of a witness the accused is entitled,

without prejudice, to keep mute in response to police questions, but the law

does not stop at that.

The procedure for the interrogation is regulated by the

provision of the Evidence Act relating to the admissibility of confessions (37),

and the Judges’ Rules.

A confession is admissible in evidence at the trial

of the accused only if voluntary (38).

If it is forced on him by the police,

it will not assist their case.

Moreover, s. 28 of the Evidence Act provides

as follows :

“A confession made by an accused person is irrelevant in a cri-

minal proceedings if the making of the confession appears to the

court to have been caused by any inducement, threat or promise

having reference to the charge against the accused proceeding

from a person in authority and sufficient in the opinion of the court

to give the accused reasonable ground for supposing that by ma-

king it he would gain any advantage of a temporal nature.”

The Act does not define the expression, “person in authority”, but ob-

viously it includes a police officer concerned with the case.

A statement made

by the accused, other than a confession is not within the provision of s. 28

but as Lord Summer has said

“It has long been established as a positive rule of English law that

no statement by an accused is admissible in evidence against him

unless it is shown to by the prosecution to have been a voluntary

statement, in the sense that it has not been obtained from him either

(36)

S

136, Penal Code.

For

a

restrictive

Mechanic v. Bedde Native Authority, 1962, N.R.N.L.R.

int.erpretution of the section, see

(37)

S. 27 (1).

Evidence Act defines a confession as «an admission made at any

time by a person charged with a crime stating or suggesting that he has committed

the crime».

I

(38)

S. 27 (2), E.A.

— 238 —

by fear of prejudice or hope of advantage exercised or held out

by persons in authority.” (39)

If it is disputed, the burden of proving that a confession or statement

was voluntary lies on the prosecution.

In order to avoid argument and for

the guidance of police officers conducting an investigation the English judges

of the King's Bench Division, in response to a request from the British Home

Secretary, in 1912 formulated certain rules, known as the Judge’s Rules,

as to how the police should proceed in conducting an interrogation of accu-

sed persons.

Additional rules were made in 1918, but they have now been

superseded by now rules made in 1964 (40).

The old rules have been adop-

ted by the courts of Nigeria and since 1960, the substance of the rules have

been embodied in the Criminal Procedure (Statement to Police Officers) Rules,

1960.

The rules declared the right of the police to question suspects in its

endeavour to find out the authorship of a crime, but, as soon as the police

officer conducting the investigation has made up his mind to charge the per-

son with an offence, the accused person must be cautioned before further

statements are made by him.

By the caution the accused person is reminded

of his right to say nothing.

The purpose of the caution is to put the accused

on his guard and to put off any hope which he might have nursed about the

prosecution being dropped should co-operation with the police.

The caution

must be in the following words

“Do you wish to say anything in answer to the charge ?

You are

not obliged to say anything unless you wish to do so, but whatever

you say will be taken down in writing and may be given in evi-

dence.”

In the case of Northern Nigeria the first sentence of the caution is

“I

have decided to make a complaint against you before a court.”

A statement

made by a person under arrest before there is the opportunity to adminis-

ter the caution is not rendered inadmissible in evidence merely because a

caution was not administrated but in such a case the caution must be given

as soon as practicable.

Presumably the person is free to retract the statement

after the caution had been duly given.

Furthermore a person who has volun-

tarily made a statement to the police cannot be cross-examined by the police

although questions may be put to him to clear ambiguities in what he has

actually said.

In Northern Nigeria a statement obtained by the police from an accused

person in breach of the rules is not admissible in evidence (41) but in the

Southern jurisdiction, the court has a discretion to admit such statement if it

is otherwise satisfied that it is voluntary.

Facts discovered in consequence of

(39) Ibrahim v, R., 1914, A.C. 599 at p. 609. The learned judge conceded however

that such statement can only be excluded in the exercise of the court’s power to

exclude prejudicial evidence for if admitted, it is bound to have little or no weight.

(40)

The rules are rules of practice, not of law.

(41)

Rule 9. The provision is subject to the Evidence Act.

— 239 —

such statement, whether confessional or not is, however, made admissible to-

gether with evidence that such discovery was made in consequence of infor-

mation received from the accused not-withstanding that the statement itself is

not admissible in evidence (42).

Searches

The police officer making an arrest or to whom a person arrested by

a private person is brought has power to search the offender and place in

safe custody any article found on him, other than necessary wearing appar-

rels.

In doing so, the police officer may use any reasonable force necessary.

After the offender has been released on bail, the officer can only conduct a

search only if he reasonably believes that the offender has about his person

incriminating materials or any offensive weapon (43).

For the sake of decency,

it is provided that whenever it is necessary to cause a woman to be searched

the search must be conducted by another woman (44).

On the other hand, the search of premises for incriminating materials

is illegal unless it is authorised by a magistrate upon a warrant issued by

him, called a search warrant.

A search warrant may be issued where a ma-

gistrate is satisfied upon oath and in writing that there is reasonable ground

for believing that there is in the region a premises upon or in respect of which

an offence has been or is suspected to have been committed or anything which

there is reasonable ground for believing that will afford evidence as to the

commission of any offence or any thing which there is reasonable ground for

believing is intended to be used for the purpose of committing any offence

(45).

The judicial participation is intended to ensure that the citizen's privacy

is not unduly invaded, but, as in the case of the warrant of arrest, it is not

more than a formality.

A superior police officer (46) may by authority under

his hand authorised the search of any house, shop, warehouse or other pre-

mises for the purpose of recovering stolen property if the premises are, or

within the preceding twelve months have been, in the occupation of any person

who had been convicted of receiving stolen property or of harbouring thieves

or of any offence involving fraud or dishonesty and punishable by imprison-

ment (47).

A search warrant issued by a magistrate can only be executed

between the hours of 5 a.m. and 8 p.m. unless the magistrate issuing it autho-

risies its execution at any hour.

The same would seem to apply to a search

For the avoidance of

authorised by a Superior police officer aforesaid.

(42)

29, Evidence Act.

(43)

6 (1), C.P.A.

(44)

6 (2), C.P.A.

(45)

nnnwn

.

107 (1), C.P.A.

That is, an officer above the rank of an Assistant Superintendent of Police

including a Chief Officer and a

eputy Chief Officer of a

olice Fire Brigade and

an administrative officer appointed to supervise a station in the absence of a superior

police officer—s. 2, Police Act.

(47) S. 24, Police Act.

— 240 —

of doubt, s. 78, 1, of the Criminal Procedure Code of Northern Nigeria pro-

vides that a search of premises must be conducted in the presence of two res-

pectable inhabitants of the neighbourhood to be summoned by the person to

whom the warrant is addressed.

A search conducted in a manner other than that prescribed by law is

Evidence

illegal and the police officer concerned may be liable in trepass.

thereby obtained is not, however, rendered inadmissible merely because the

search is illegal.

In Sadau v. The State (48), the properties recovered in the

house of the appellant were the subject matter’ of the charge against him.

It was held that as they were relevant in the absence of a provision of the

law excluding them they were admissible in evidence despite the contention

that the procedure prescribed by s. 78, 1, of the Criminal Procedure Code

was not followed in conducting the search leading to their discovery.

As Co-

ker, J.S.C. observed subject to the power of the court to exclude prejudicial

evidence considering the circumstances of its discovery “‘there is no general

rule of law in civil and criminal cases that evidence which is relevant is ex-

cluded merely by the way in which it has been obtained.” (49)

This deci-

sion has been criticized on the ground that it may encourage the police to

commit illegalities and violations of the constitutional rights of the citizen (50).

But, as a citizen who has committed a criminal offence has no constitutional

right to be shielded from the law, it is submitted that the Supreme Court is

right in refusing to be persuaded to use the law of evidence and procedure

to exclude relevant and credible evidence in the absence of a statutory prohi-

bition (51).

The decision cannot operate unfairly against the innocent man.

If illegality has been committed by the police, his remedy is in damages (52).

Decision to Prosecute

On completion of the investigation, the decision as to whether or not

the accused should be prosecuted must be taken.

In many cases that decision

is the sole responsibilty of the police although, in the case of a complaint

lodged by a victim of the crime the police will generally prosecute the of-

fender if they are in possession of sufficent evidence.

In cases of difficulty,

however, the police may, and in a few cases (53) must, seek the advice of

the Director of Public Prosecutions.

Indeed it is the duty of the latter to

undertake the prosecution in respect of :

(48)

1968, N.M.L.R. 208.

(49)

Ibid., at p. 212.

(50)

A.B. Kasumu

«Admissibility of illegally obtained Evidence in Nigeria» (1969)

3 Nigerian Law Journal 83,

(S1)

Cf. s. 29 Evidence Act.

(52)

Mr. Kasumu argued that the right to damages is illusory since most people

confronting the police are of little means an

even where he is able to sue, the police

committing the offence may not be able to pay. Op. cit. p. 96 That is the bane of

civil jurisdiction in any case.

(53)

E.g. manslaughter.

—_ 1 -

a)

Any offence punishable with death.

b)

Any case referred to him by a Government department or agency in

which he considers that criminal proceedings should be instituted or

<)

any case which appears to him to be difficult or which for any other

reason requires his attention.

In some others, in order to avoid unnecessary embarassment to the go-

vernment or the persons concerned, the consent of the Federal Attorney Ge-

neral must be obtained before criminal proceedings are instituted (54). These

are

1)

offences relating to the security of the state ;

2)

offences relating to the administration of justice ;

3)

where a minister of any Government in the Republic or any legal prac-

titioner is accused of any offence either singly or jointly with other persons

and

4)

where prosecution is contemplated in respect of any public property of

a foreign government within the jurisdiction of the Nigerian courts

Save as already mentioned with regard to Northern Nigeria, the court

has no part to play in the making of the decision which is purely an executive

function.

An accidental decision to the one to prosecute an offender is the decision

as to which of the courts exercising criminal jurisdiction should determine the

case.

In the case of juvenile offenders there is no choice, as the charge

must be brought in the Juvenile court.

As regards adult offenders the police

or other person prosecuting must decide whether the charge will be brought

in the Magistrate's court or in the High Court or in the customary court.

Magistrate’s Court

The magistrate’s court is a court of summary jurisdiction but in pratice,

its jurisdiction is mainly invoked for the trial of indictable offence which it

is empowered to try provided the following conditions are fulfilled

1)

The accused must be informed in the language he understands of his

right to be tried in the High Court, ad the implication must be explained

to him (55).

2)

The accused must have consented to the case being tried summarily

by the Magistrate.

(1967),( p.

.

) Se.e generally, Elias : Nigeria : The Development of its laws and constitution

(55)

has jurisdiction to inflict heavier punishment.

The usual explanation given by clerks of Magistrates is that the High Court

That is true;

u

the accused ought to

be further told that in the High Court he has a greater chance of a mature consideration

of his case.

—_ 242 —

3)

The offence must be of such a character that, if proved, the accused

would be adequately punished by the sentence which the Magistrate has

jurisdiction to impose.

4)

If a law officer is interested in the case his consent must be obtained.

The precise implication of the adequate punishment test of jurisdiction

is far from clear.

On its logical reading one would have thought that if, in the opinion of

the appellate court, the magistrate ought not to have exercised jurisdiction

because of the insufficiency of his power of punishment, the trial is a nullity.

This interpretation cannot, however, be reconciled with the decision of the

Supreme Court in Aremu v. Police (56).

In that with armed robbery and

on conviction was sentenced to five years imprisonment.

On appeal to the

High Court the sentence was increased to ten years imprisonment in view of

the gravity of the offence.

Although the Supreme Court observed that cases

of armed robbery was not suitable for trial in a Magistrate Court, it felt

obliged to restore the original sentence of five years imprisonment.

It follows

that, subject to the other conditions being fulfilled, the prosecution may ini-

tiate proceedings in the Magistrate Court if it desires no more than five years

imprisonment for the offender even in respect of very serious offences.

The

Magistrate may,

however,

refuse to exercise jurisdiction.

Quite obviously

prosecution for a capital offence cannot be undertaken in the Magistrates

Court, and, by practice, manslaughter and rape are tried in the High Court

only.

The High Court

Where the minimum punishment prescribed for an offence exceeds the

jurisdiction of the Magistrate's Court or the prosecution desires a heavier sen-

tence than five years imprisonment, or the accused fails to elect summary

trial, the proceedings may be initiated in the High Court.

In homicide cases,

the High Court is the only court of competent jurisdiction.

Customary Courts

The police may, instead of charging the accused before a Magistrate's

Court of the High Court bring the charge up in a customary court of compe-

tent jurisdiction.

Customary courts in the Eastern and Midwestern States en-

ioy very little criminal jurisdiction.

In the Eastern States the court can only

award a fine of £ 40 or three months imprisonment; in the case of the

Midwest, £ 10 fine or one month imprisonment and the accused must always be

given an option of fine.

The jurisdiction of the customary courts of the higher

grades in the Western and Northern Sates is much higher.

The Grade A

court in Western and Lagos States and the Upper Area Court in the Northern

(56)

1965, All N.L.R. 217.

— 243 —

States enjoy concurrent jurisdiction with the High Court in all cases with the

exception of homicide.

The decision to bring up a charge in the customary

court rather than in the High Court or Magistrate Court may have serious

consequences on the accused.

In the first place, with the exception of cus-

tomary courts presided over by lawyers in Western Nigeria and Lagos State,

the accused cannot obtain the assistance of a legal practitioner, as coun-

sel have no right of audience in such courts.

On one occasion, in the writer’s

experience, a charge of indecent assault made against an educated man of

means was brought up in the customary court in order to deny him of the

assistance of counsel, solely as a repraisal for rude conduct to the police.

Secondly, the chances that the accused will obtain the maximum punishment

are greater in the customary court than in the High Court or Magistrate Court

as some customary court judge are reputed for not being prepared to see

the battle against crime from the standpoint of the criminal.

The consolation

is, however, that in the customary court, the accused is assured of speedy

trial at no substantial costs.

IIl. — THE JUDICIAL PROCESS

Apart from the fact that in the Lagos High Court a judge is required

to sit with a jury in capital trials, the procedure for the trial in all the courts

is the same.

'Where the judge sits with a jury, the judge’s task is confined

to directing the jury on a point of law ; the decision to convict or acquit

the accused lies with the jury.

Trial in the High Court has, however, one

peculiarity.

In the normal situation it is preceded by a preliminary investi-

gation in the magistrate’s court, but with the consent or at the direction of a

judge of the High Court an information may be filed without the necessity of

a preliminary investigation.

A preliminary investigation should be distinguished from police investiga-

tion.

While the latter is aimed at discovering the necessary evidence, the

purpose of the preliminary investigation conducted by a magistrate is to ascer-

tain whether the evidence so discovered is legally sufficient, if believed, to

support the charge as laid.

But the magistrate is required to collect evidence

and not decide the case.

As it is often said, he is to find out whether the

evidence discloses a prima facie case for the accused to answer.

If his

answer is yes, he must commit the accused for his trial ; if it is otherwise, he

must discharge the accused.

The discharge does not operate as a bar to

subsequent proceedings in respect of the same case.

The traditional justi-

fication for the preliminary investigation is that it saves the valuable time of

the judge from being wasted and the accused from being oppressed by a

trial which is bound to fail in the High Court.

In practice, however, the preli-

minary investigation may be oppressive to the accused.

In substance it imposes

on him two trials.

Moreover, although it seldom happens, the discharge of

an accused at the preliminary investigation is a rare occurrence.

The only

good purpose which the investigation serves is that it affords the accused fore-

— 244 —

knowledge of the evidence against him and gives him the good opportunity

to prepare his defence (57).

If this is the argument in favour of retaining

the system, it is suggested that the need of the accused can be equally

met by making available to him copies of the statement of the prosecution wit-

nesses of the police.

The Role of the Court

The role of the court, before which a charge is brought is to decide

whether on the admissible evidence before him the charge preferred against

the accused has been made out.

The decision to convict or to acquit

rest entirely with the judge or in the case of jury trial, with the jury.

If the

judge does not believe the witnesses for the prosecution or if he believes

them, he is of the opinion that the charge as laid out is not supported by the

facts, the accused will be discharged.

In coming to his decision, the judge

cannot legitimately exercise a discretion.

His decision to convict or acquit

should be based on an objective and detarched assesment of the facts before

him and the law.

In practice, however, it is well known that a judge’s readi-

ness to convict or acquit may be influenced by such considerations as the

severity of the punishment prescribed for the offence which he does not feel

happy about imposing, or the ruinous effect which a conviction or sentence may

have on the bright prospects of the offender.

For example a magistrate ad-

mitted to the writer that he took advantage of the slightest chance to acquit

an accused charged under the Indian Hemp Decree, 1966 because he felt that

the minimum sentence of 10 years imprisonment was too severe.

In one

case, lkpeazu, J., of the Lagos High Court was reported to have dealined

to try without a jury a charge of cultivating indian hemp carrying life impri-

sonment, apparently because he did not wish to take responsibility for the

conviction and sentence.

It is in the realm of sentencing that the court has a wide discretional

latitude (58).

In the majority of cases, the law fixes only the upper limit of

sentences and leaves the magistrate or judge the power to fix the sentence

appropriate within that limit, which may vary from a caution and discharge,

a binding over order, a fine or imprisonment depending on the judge’s view

of the circumtances of the case.

The

He may even dismiss the charge (59).

law expects the punishment awarded to fit the offender in the light of the

nature of the offence, and not necessarily to fit the offence itself.

Indeed, the

court is required to listen to the accused’s plee in mitigation of sentence before

he can lawfully pass a sentence on him (60).

—

S——

(57)

The information filed upon the authority of a committal order may charge

other offences in addition to or in substitution for those in respect of which the order

was made.

Additional evidence may also be adduced at the trial. The practice is,

however, for the accused to be given advance notice of the evidence.

(58)

An order as to sentence is not appealable at the instance of the prosecution.

(59)

Under S. 435, C.P.A.

(60)

S. 247, C.P.A.

—_ 245 —

In Police v. Tegbe (61), Hedge's described as undesirable the practice

of incorporating the court’s sentence in the judgment without giving the accused

the opportunity of saying any thing in mitigation of sentence.

In that case the

sentence was not interferred with because in the opinion of the learned judge

it was, light, if not inadequate.

If the sentence had been severe, that might

have been a reason for quashing it.

Moreover, in the assessment of a line

to be imposed upon conviction the court is required to tailor it to the means

of the offender where known (62) :

“The option of a fine is illusory if an accused person has not hope

of paying it (63).”

Moreover, the court has the discretion to require postpone, on the request

of the person convicted, the fine imposed on him or to pay the same by

instalments (64).

CONCLUDING OBSERVATIONS

The excercise of a discretion is of major significance at every stage of

the criminal justice process.

Not every commission of crime is followed by

arrest of the offender, nor every arrest by prosecution, nor every convic-

tion by punishment.

Much depends on the circumstances of each case and

the disposition of the police officer or the judge or magistrate concerned. The

success of the system depends on the degree to which the discretion is exer-

Congestion in the prisons will be greatly

cised upon rational principles.

reduced if the court makes use of its power to impose a fine more frequently,

so that the sentence of imprisonment is used only as a last resort, that is,

where the accused is unable to pay the fine or the award of prison sentence

is the only way to deal with the offender.

The present practice of imposing

a fine only in minor assaults or traffic cases is not good enough. The court has

a discretion to impose a fine in every case, notwithstanding that the law crea-

This dis-

ting the offence does not specifically authorise him to do so (65).

cretion is meant to be exercised, and there is no reason why it should not

be freely exiscised in respect of minor thefts, particularly in the case of young

adult offenders and the novice in crime.

The young offender may also be caned

rather than being imprisoned where he obviously will not be able to pay a

fine

The court may also release such offender to on probation after such

canning (66).

What should be borne in mind in every case is that punishment

of the offender is poor consolation for the victim of his crime.

(61)

1957, W.R.N.L.R. 125

(62)

S. 381, C.P.A.

(63)

Goke v. Police, 1957, W.R.N.L.R. 80

(64)

S. 892, C.P.A.

(65)

S. 382, C.P.A.

(66)

As to Probation see s. 435, C.P.A.

— 246 —

The Future of Sentencing in Nigeria

by Alan MILNER

N.A., LL.B., LL.M., Ph.D., Barrister-at-law,

Fellow of Trinity College, Oxford

A paper presented to the International Course in Criminology on the

Non-Institutional Treatment of Offenders, Lagos, April 1970.

Nigeria now has an excellent opportunity to pause and consider the

future development of its penal policies.

Reconstruction is the byword today,

and hand in hand with economic and political reconstruction must go the

devising of new strategies for the control of social affairs.

Above all, the

search must be for solutions which are peculiarly oppropriate to Nigeria in

the 1970 s.

Many basic assumptions need to be questioned, particularly those

which have been inherited uncritically from the colonial era.

An untold

amount of domestic research needs to be carried on but equally the govern-

ment must look outward to the rest of the world and turn the successes and

failures of other nations to the benefit of Nigeria.

This paper is an attempt, based on my own work on the fringes of the

Nigerian penal systems during the past six years, to see how judicial sentencing

can be restructured to incorporate the best of traditional Nigerian practices

and at the same time take advantage of the skills of modern penology.

|I. — THE RANGE OF SANCTIONS

Cultural sensitivity

How far are the modern criminal law and penal system in Nigeria really

modern Nigerian institutions ?

Is it possible or desirable that they should be

stamped with a peculiarly Nigerian stamp ?

If so, how should this be achie-

ved ?

The laws and institutions are basically British.

Nigeria was a British terri-

tory and its first Criminal Code was introduced by the proclamation of a British

conqueror.

It was a standard Colonial Office draft whose estimates of immo-

rality and social harm no more consciously reflected the aspirations and beliefs

of Nigerians in 1904 than it did those of the people of the Australian state

— 247 —

of Queensland into which it had been introduced five years earlier.

Indeed,

the policy of legal dualism which was adopted in Nigeria recognised the

basic unsuitability of this codified common law of crimes for governing the

public offairs of the people and customary laws were explicitly preserved.

Once the pattern was established, it was scrupulously followed.

Most of the

criminal legislation which followed until a few years ago was not designed

specifically for Nigeria but borrowed instead from the United Kingdom or its

colonial territories (1).

Only the stress of internal disorder since 1966 has

produced a slightly different look to the criminal law.

The range of penalties available in Nigeria has itself been the subject

of this borrowing. The original Criminal Code contained very few penal sanc-

tions devised with the Nigerian community in mind and the pattern since then

has been not to devise new and locally effective penalties but fo use ihe

ready-made English machinery for apparently similar African problems.

Some

of the sanctions proved acceptable because they reflected the pre-existing

customary laws.

Compensation and restitution have always been popular and

acceptable means of disposing of cases in Nigeria, much more so in the cus-

tomary courts than in the British.

The fine has been happily taken over by

the customary courts as their most common sentence.

Other sanctions have

been treated with suspicion—even measures which may seem to the outside

observer to be hardly controversial, such as probation and approved school

training (2).

Even imprisonment had occasional disturbing social effects when

introduced by the British administration into areas in which it had not been

previously practised (3).

The occasional penalties which differed from those found in England ten-

ded to be born rather of administrative necessity than based firmly on the

local value structure.

Some were not—notably the punishment in the stocks

introduced by the original Criminal Code (4), or the conditional exemption

But even

from imprisonment given to the first and second class chiefs (5).

such a device as collective punishment, sometimes hailed as effectively reco-

gnising the African customary principle of group liability, was in reality no

more than a convenient administrative measure to be applied to a group when

the responsibility of one of its individual members could not be established (6).

Another, the old provision for “field imprisonment” (7), simply provided a means

for detaining an offender, by tying or chaining him up, when no prisons were

available locally.

And though more recently penal policy has begun to show

a shift in technique with the introduction of mandatory and minimum sentences,

and the discretionary death penalty, these are changes merely in the use

of existing penalties and not the development of new ones.

The best-publicised attempt to design a code of criminal law specifically

suited to Nigerian conditions is of course the Penal Code of the Northern

States.

The Sudanese and Pakistan version of the Indian Penal Code were

used as a model of a system of criminal law designed for a mixed Moslem

and non-Moslem community.

The Northern code contains provisions which

obviously facilitated the change-over from Maliki to statutory criminal law,

— 248 —

such as the punishment of adultery, slander and drinking, the revamping of

murder and manslaughter (more apparent, one may add, in name than in

substance) and the giving of statutory authority for the haddi form of corporal

punishment.

Procedurally, a notable concession was made to customary law

by giving statutory effect to the compounding procedure (8).

But such things as this part, the structure of the Sudan and Pakistan

Penal Code was adopted without question in Northern Nigeria.

It undoubtedly

has real merit for dealing with the problems of this part of the country : yet

it is a merit which lies not so much in its special suitability for use in Nigeria

as in its conveniently providing a simplified version of the obscure English law

It remains an

of crimes for use by a hitherto untrained area court judiciary.

essentially English code, using English estimations of the seriousness of offences

in the penalties it prescribes and confining its punishments basically to those

of an English-based penal system.

Where changes were made in the penalties

especially for Northern Nigeria, they were inspired not so much by a wish

to make them suitable for the culture as with a view to keeping them in step

with similar provisions of the Criminal Code (9) itself an English common-law-

based code which was in other respects thought unsatisfactory for the North.

The continued suspicion shown of the Penal Code in some Moslem quarters

suggest that perhaps even this new endeavour has not been wholly successful

in reflecting their values in statutory formulae.

A differential sentencing policy

The last 70 years have witnessed the replacement of customary sanctions

by those introduced from Europe.

In many senses this is highly appropriate

because the nature of many parts of Nigerian society has charged in that

time, and mod.rn urban and industrial complexes have ground up which bear

no relation to customary society.

But looking at Nigeria as a whole, how much has its society changed—

how much can any society change ?—so that one can say that traditional

solutions to society problems have absolutely no relevance today ?

How far

can the modern state afford to ignore the traditional solutions and press for-

ward only with

‘modern” solutions ?

The answer to the first question is that many Nigerian communities have

changed to the point of being unrecognisable, and many have not.

For all

the increasing wealth of the nation and the urban industrial and commercial

expansion, the overwhelming majority of Nigeria's citizens live in villages at

subsistence level.

Mobility may be increasing, and the social controls possible

in face-to-face communities may be disappearing, but two facts remain clear

a)

that a vast number of small established village communities still exist,

which have never been detribalised and in which there is much to suggest

that traditional social controls may still be effective ;

— 249

b)

although there is evidence that social groups in the East and West can

be completely assimilated into each other (10), there is ample evidence

that many migrant groups do not assimilate into their host communities

but rather retribalise and retain both distinct residential segregation and

cultural homogeneity (11).

In brief, Nigeria presents a picture of a nation in a state of rapid but

differential development, demonstrating at the same time extremes of both urban

anonymity and village cohesiveness, detribalisation and ethnic solidarity.

If traditional society itself has not become irrelevant to modern Nigeria,

the ideas and ways of traditional society must remain relevant.

Subject to the

dictates of international morality the state has a responsibility to make available

to the courts all the remedies for legal disputes which can be shown to be

effective in any of the different cultural situations in the country.

The political and economic advancement of Nigeria may well lie in the

elimination of local differences and the creation of a stronger sense of national

purpose.

But in a matter such as the control of crime. although there may be

some national purpose, the most effective means of enforcing it may vary from

community to community, and from individual to individual.

Group habits and

attitudes are vital factors in securing law observance and every opportunity

should be taken to explore the range of solutions offered by different groups

to their problems of non-observance.

In simple terms, the sanctions of the

customary community cannot be written off as inapplicable today, either in the

villages or the towns.

The case | want to argue, therefore, is that for making the range of

criminal sanctions wide enough to allow them to be applied with sensitivit to

the culture of which the offender is a member.

Ultimately, the battle against

crime will not be won by the brute force of the deterrent or punitive sentence

that much the experience of Europe and the United States should demonstrate.

It may never be won at all but public order may be the better maitained and

the cultural sense of justice better preserved by making the machinery of the

criminal law more sensitive to the ideas and aspirations of each local community

it serves.

| believe that the case for differential sentencing policies is a strong one.

It has already been endorsed in part by existing practices.

Detailed examina-

tion of the sentencing patterns of the area courts of the Northern States shows

that penalties are applied by those course in a manner acutely sensitive to

the societies of which they form part (12).

No doubt the same is true of

other courts in Nigeria

the identical range of penalties for an identical

range of offences is manipulated to meet the needs and aspirations of the

local community.

The argument of the justice of treating the same offence equally in different

communities will have to yield.

It is only valid if the primary focus of attention

is retributive

the whole process of the individualisation of sentence runs

counter to it.

As with psychiatry, for example, the question should be what

()=

remedies

for

the problems

are effective within the cultural

setting—and

Nigerian psychiatry has been foremost in developing modern

reliance on

traditional remedies (13).

The objectives of sentencing

The use of public force to secure conformity and social order is the

hallmark of a society with a powerful central government.

In Nigeria, the

colonial government established in the last century in the South and at the

beginning of this century in the North established itself by public force, at

first by military strength and then through the control of the enforcement

machinery of the criminal law. This was crucial as a political stop : public

order had to be maintained to bolster the political order and the public

demonstration that control was being effectively exercised—by the prosecution

and punishment of offenders—was designed to encourage respect for (or

fear of ?) the power of the government.

There was, at the same time, much

colonial scepticism about the effectiveness of traditional sanctions—insofar

as they were understood—in maintaining order.

At the beginning of this

century Lugard was advising his political officers that

‘“

the form of the punishment inflicted must be that which is the

most deterrent and most likely to suppress crime.

Native courts

must be instructed that the restitution of stolen property, or of an

abducted person is not of itself a sufficient penalty...”

and commented elsewhere tha

'6‘

'a punishment should always be added to

restitution.” (14)

Punitive, deterrent and preventive sanctions were therefore

entrenched at the heart of the new criminal law, and there they have remained.

The increase in governmental power at both local and national levels has

only entrenched it further.

| am by no means sure that the criminal sanction is used properly in

Nigeria.

By this, | mean that | believe that the various law-making bodies

may rely too readily on the criminal law and its penalties to remedy a trou-

blesome situation and may not be pausing long enough to consider whether

other remedies are available.

There are more ways of promoting order and

preserving the values of a community than simply by punishing people.

It is not merely idealising to say that some very positive lessons can be

learned by modern criminal law from traditional methods of dispute settlement.

Nigerian customary attitudes were emphatically in favour of setting criminal

disputes by restoring the status quo as far as possible.

We all know how

widespread this arbitral idea has always been throughout Africa (15).

Des-

pite Lord Lugard's exhortations recorded above, Mr. Justice Brooke was able

to report as recently as 1953 that Nigerian traditional courts still used com-

Pensatory procedures most regularly for settling criminal cases (16), and my

own investigations of the early 1960 s confirmed this.

— 5] —

| would therefore like to consider the modern usefulness of some of the

sanctions which have a traditional basis in Nigeria and examine how far the

modern statutory structure is adequate to channel and encourage the attitudes

underlying them.

1

COMPENSATION

Considerable attention has been paid in recent years to the problem

of the victims of crime.

The main argument in favour of this attention has

been that in emphasing the punitive and rehabilitatory aspects of criminal

sanctions, the focus has been shifted in the direction of the offender as the

key figure in the criminal law process and away from the social problelms

created by his offence.

The extent of the jury caused to the individual remains

the same, no matter how the offender is dealt with, and a plausible argument

can be advanced in favour of using the criminal law and the criminal courts

both as instruments of the state indealing with the offender and of the indi-

vidual in remedying the wrong done to him.

The particular solution to this dilemma which has recently had the most

popular support is that which requires the state to act as the compensator,

either by way or acknowledgment of its responsibility for the state of social

The English

affairs giving rise to the offence, or simply on an ex gratia basis.

Criminal Injuries Compensation Scheme is the most notable modern development

on these lines (17).

But this is not in issue here.

We are concerned here

with the more direct problem of whether the court (or some other agency)

can in some way require the offender to make good the loss, damage or injury

he has caused to another.

There is certainly ample justification for such an approach.

Looked at

from the viewpoint of the offender, money which is paid out as compensation

to the victime is no less lost to him than money paid out as a fine.

If the objec-

tive can legitimately be to deny him the opportunity of profiting from his

offence, it does not matter at all that the beneficiary is the victim rather than

the state.

Indeed, a compensation order may serve a dual purpose by stres-

sing not only the offender’s obligations to the community (by suffering punish-

ment) but also those to the individual his act has harmed.

That individual

may, in any event, bring a subsequent civil action against the offender to

recover damages for the injury and so the award of damages in the course of

the criminal trial will simply speed the process of compensation and save the

victim and the state the expense of the civil action.

This may be a particu-

larly potent argument in a developing country, where it is obviously preferable

to avoid duplicating the expense of litigation—especially when the suit likely

to be foregone by reason of the expense is the one more likely to offer a

practical remedy for the social wrong.

One wonders, too, how far the refi-

nements of the difference in objective between criminal and civil suits will be

It is certain that

apparent to the victims of crime and potential civil litigants.

at least in the rural areas and probably in many urban areas too, the expec-

—_— 252 —

tation and preference will be for the complete disposition of the case at one

sitting, rather than for the division of the issue into separate cases between

the state and the offender, and between the victime and the offender.

At the same time, it is possible to see with some clarity the objections

which may be raised to the use of the criminal courts as agencies for the

compensation of victims.

The traditional view, based on an appreciation of

the English division of issues into criminal and civil, is that the criminal courts

should not be “the medium of compelling people to pay their debts” (18).

The burden and standard of proof, it is said, is not the same ; in the criminal

case the prosecution would need to prove the offender’s guilt beyond a reaso-

nable doubt before he could be ordered to pay compensation, whereas in the

civil case the victim would only need to show a probability that the offender

was responsible for the injury.

If the criminal case is therefore used as the

medium of compensation, recovery may become more difficult than it need be.

Again, it may be that the issues to be tried in the two types of cases will not

be the same.

In the Uganda case of Mehar Singh v. R. (19), for example,

the High Court refused to uphold a compensation award in a dangerous dri-

ving prosecution because the civil defences, such as contributory negligence,

had not been fully canvassed since they were strictly irrelevant to the crimi-

nal prosecution.

A more substantial obstacle to a compensation policy is its frequent im-

practicability. The offender may not be found or if found may have no means

and cannot be made to pay compensation.

A person accused of a property

offence may well have dissipated the proceeds and have none left; or if he is

arrested before he has disposed of the property, a simple restitution order

will suffice.

It is clear from the existence of criminal compensation provisions in the

codes of many African countries that these objections have not always prevai-

led.

Several, indeed, provide not merely for compensation but also for com-

pensatory fines, whereby the courts are allowed to assign the whole or part

of a fine to the compensation of the victim (20).

The Nigerian situation is paradoxical, for both the dichotomy between

traditional and British court processes, and the political divisions of the coun-

try, have combined to produce conflicting and confusing attitudes towards com-

pensation.

I would like to deal with the various parts of the country in turn.

The original Nigerian Criminal Code contained a compensation provision

believed to be so adequate that is admirers incorporated it into the codes of

East and Central Africa in the 1930 s.

The Nigerian authorities, however, were

less struck with its beauty and repealed it in 1945 (21). There were left for

use by the colonial courts—and this still remains true of the High Courts and

magistrates’ courts of the southern States—only three woefully fragmented and

inadequate compensation provisions, allowing compensation of not more than

£ 10 and, rarely, the payment of compensation to an accused person in the

event of frivolous or vexatious proceedings against him.

— 253 —

The feeling quite clearly was that the distinction between the strict adver-

sary procedures of the colonial courts and the looser, more settlement-oriented

procedures of the traditional courts, should be emphasised.

In 1933,

the

new Native Courts Ordinance had introduced the idea of the compensatory

fine to Nigeria (22); it has been continued to the present day in the legisla-

tion of the Eastern States (23), though the other States have modified it to

allow compensation to be ordered only in addition to a fine or imprison-

ment (24).

The reconstruction of the procedural system in the Northern States in

1959-60 led to simplification there insofar as the same procedures were made

available to both traditional and British courts, Compensation, though not the

compensatory fine as we shall see, was seen as valuable objective and the

draftsmen of the new Penal Code, reversing the steps of 25 years previously,

borrowed back the compensation provision of the Kenya Penal Code.

As s.

78 of the Northern Code, it reads :

“Any person who is convicted of an offence under this Penal Code

may be adjuged to make compensation to any person injured by

his offence and such compensation may be either in addition to or

in substitution for any other punishment.”

On the face of it, this is an excellent provision and one which could give

full play to the attitude which approves the settlement of criminal cases by

compensation.

But is in fact a classic example of a provision the intentions

of which can be frustrated by poor drafting and insensitive judicial interpre-

tation.

As things have turned out, the section has not been an unqualified

success.

The first

There are two limitations arising on its face of the section.

concerns the phrase “‘any person injured by his offence”.

There is authority

from Malawi, construing similar words in the Penal Code there, to the effect

that they allow compensation only in cases of physical injury to the person

(25).

If this interpretation is followed in the Northern States, the scope of the

On the other hand it would not

section will at once be drastically reduced.

take much imagination to interpre

',LG

injury” widely enough to include “loss”,

and so make the remedy available in property offences.

How far the interpre-

tation can be stretched will depend on the willingness of the bench to remedy

what it may regard as unjustifiable wrongs.

One wonders if, for example,

the courts would hold that a spouse is “injured” by her husband’'s or his

wife’s adultery (an offence by virtue of ss. 387 and 388).

Certainly in

Uganda, which introduced the crime of adultery into its Penal Code in 1964,

it was felt necessary to specify that compensation should be payable to the

other spouse, even though there was already a general compensation provision

in its Penal Code (26).

The Tanzanian courts have ruled that compensation

for “material loss or personal injury”” can only be paid to the person who

has directly suffered from the offence and not to a third party for the loss

Since unlawful sexual intercourse was retained

of the victim’s services (27).

in the Northern Penal Code specifically because of its relevance as a custo-

— 254 —

mary offence, the customary remedy of compensation should also be retained ;

and if this is not clear on the face of s. 78, it should be stated specifi-

cally (28).

This leads logically to the second limitation appearing on the face of

the section.

Section 78 requires an offender to be convicted of an offence

under the Penal Code itself; s. 365 of the Criminal Procedure Code, which

is the enforcement section for compensation, allows compensation whenever

the accused is fined under any law.

The second provision seems wiser

it

is pointless to fragment the compensation provision and make it necessary to

specify in each statute that compensation may be paid.

The focus should be

the injury caused by an offence (if this principle can be suitably worded to

overcome the problem of adultery already mentioned) and it should not matter

what offence that is.

It can certainly be argued that this will in face be the

effect under the Northern legislation, for the Criminal Procedure Code, being

a later statute than the Penal Code, may technically taken to overrule it in

so far as they are inconsistent with each other.

It should be unnecessary to have to use this type of argument in respect

of two codes which are designed to work together ; but its use is symptomatic

of the confusion surrounding these enforcement provisions.

If one uses it con-

sistently, s. 78 of the Penal Code becomes a much mutilated provision, as there

are several respects in which it is inconsistent with s. 365 of the Criminal

Procedure Code.

This is entirely the consequence of the adoption of the pro-

visions from different source jurisdictions—s. 78 from Kenya, and s. 365

from Pakistan and the Sudan—and the draftsman's failure to integrate them

properly.

Section 365 provides that

“Whenever under any law a criminal court imposes a fine, the court (29)

may, in passing sentence, order that in addition, the offender shall pay a sum

a)

defraying the proper expenses of the prosecution ;

b)

compensating in whole or in part for the injury caused by the offence,

where in the opinion of the court substantial compensation is recoverable

by civil suit;

<)

compensating an innocent purchaser of property which has been the

subject of an offence and who has been compelled to give it up ; and

d)

defraying the medical expenses of any person injured by the accused

in connection with the offence.”

Section 78 of the Penal Code purports to make compensation available

“in addition to or in substitution for any other punishment”’, but when one

tries to enforce such an order, one finds that s. 365 only allows enforcement

if the compensation order is additional to a fine (30). This is an almost total

frustration of the good sense of s. 78 both in logic and practice.

Why

should compensation only be available if the offender is fined ?

It made sense

in the context of the other Indian-based codes because they required a fine to

— 255 —

be imposed to create a fund out of which compensation was then paid (31).

1t makes no sense in the present context because there is no reason at all why

compensation should only be relevant as a measure in addition to a fine

rather than (as s. 78 envisages) to any other sentence.

Indeed there may

be a valid reason why compensation should not be added to a fine

an offen-

der who has to find the money to pay a fine be correspondingly less able to

raise the sum needed to make good the compensation order as well.

The Northern compensation provisions are wisely unlimited in their finan-

cial scope.

The absence of ceiling on the amount which may be awarded is

essential if the courts are to have a realistic opportunity of fitting the compen-

sation to the injury or loss sustained.

In addition, as specified maximum would

need regular review to keep it meaningful and this could very easily be allo-

wed to pass undone (32).

One need only look at the paltry £ 10 provision

in the Criminal Code to see this.

Despite the apparently liberal Northern provisions, however, the High

Court of the North-Central State has held in Tebu v. Police (33) that a court's

jurisdiction to order compensation “is limited in the same way as its power to

impose a fine”.

In effect, therefore, only the High Court will be able to

offer total compensation if the amount exceeds £ 500 and the power to all

other courts will be limited to the extent of their fining jurisdiction.

This is

said to follow from the terms of s. 367, which allow a compensation order to

“be enforced as if it were a fine”.

A valid fine is one “which may lawfully

be enforced and must therefore exclude any fine which the court ordering

the compensation could not lawfully impose”.

It is certainly arguable that

this is not the intention of the section.

The only jurisdictional limit clearly

expressed is that on fining ; had there been any wish to limit the power of

compensating, it could also have been expressed.

A better view of the pro-

vision, which would allow full play to its basic policy, would be to construe

the enforcement provisions in s. 367 as relating the procedure of enforcement

and not jurisdictional in any way.

The integration with potential civil procee-

dings must be complete if the provision is to be meaningful ; s. 366 accordingly

requires the compensation to be taken into account in any subsequent civil

action relating to the same matter.

The Northern courts will also no doubt

follow the eminently sensible East African rules and require that the right to

civil compensation be clearly established (34), that the amount awarded

as compensation in the criminal proceedings be certain (35), and that any

compensation already paid by or on behalf of the offender to the victim be

taken into account as reducing or eliminating the need for a compensatory

order (36).

| have dealt with this issue in some detail, not because it is of unique

importance in this context, but because it demonstrates how even the most

laudable of intentions can be frustrated by poor implementation.

It would be

possible to explore in similar detail the inadequacies of the restitution system

but time does not permit here.

Suffice it to say that compensation and resti-

— 256 —

tution provisions have a vital part to play in the penal system if properly

drafted and enforced with a view to the social ends they serve

2

COMPENSATORY FINES

I think | should mention compensatory fines here briefly because it is

sometimes suggested that they provide a valuable link between different sen-

tencing attitudes

They marry the customary compensation attitude to the

view that punitive and deterrent considerations are important in the enforce-

ment of modern penal policies

What is more, the concept of the compensatory

fine is already well-known in Africa and has been a sanction available in some

of the Nigerian customary courts for 40 years

| do not believe, however

that much would be gained from extending

its use

If compensation can be ordered in addition to or in lieu of any

other sentence—and if the courts in fact use the power—there seems little

The two factors that

point in adding the compensatory fine to their armoury

might make a difference to this view would be

a)

if the enforcement procedures were better for fining than for compensa-

tion—as is true in some East and Central African codes, and

b)

if the fining aspect of the compensatory fine superimposed some valuable

extra characteristics on the compensation order

In fact, neither of these reasons need be significant

In the Northern

States of Nigeria, the Criminal Procedure Code expressly provides by s. 367

that compensation orders shall be enforced as if they were fines and so penal-

ties for non-payment, which would otherwise be illegal (37) may legitimately

be imposed

Without the provision, enforcement would have to take place

through the medium of civil proceedings and the whole object of amalgamating

the two causes of action would be defeated (38)

Secondly, the simple com-

pensation order is not conceived of as an exclusive remedy, but may be made

either in lieu of other sentence or in addition to one

It is undoubtedly true

that in practice the compensation order is normally used as an adjunct to

another sentence

usually of imprisonment or fine

A compensation order

plus a fine is therefore virtually the same as a fine out of which compensa-

tion may be ordered

Indeed, if the experience of East and Central Africa is any guide, the

compensatory fine may be a less satisfactory remedy than the simple compen-

sation order

The courts there, cautiously observing the dividing line between

criminal and civil proceedings, have tended to stress the punitive and deterrent

aspects of the fine rather than the socially adjustive aspects of the compensation.

The principle has therefore evolved that the courts should first determine for

itself what punishment it believes to be suitable (presumably by the traditional,

imprecise criteria of retribution and deterrence) and only then, if it feels a fine

is appropriate, should it be prepared to order compensation out of the fine.

— 257 —

9

In no circumstances should a fine be imposed or inflated merely so that compen-

sation may be ordered for the victim (39).

The reasoning is typical, the results often unfortunate.

The question-

begging criteria of “appropriateness” of sentence or “suitable severity” of

fine are exposed for criticism, for the elements to be considered in deciding

“appropriateness” are obviously imprecise.

And if, by this test, the “appro-

priate” fine is too small to offer adequate compensation, the object of the

provision will be defeated.

So yet again, attitude is all-important.

3.

RECONCILIATION

The common objective of most forms of customary dispute-settlement in

Nigeria was the pacification of the contestants and the healing of the rift in

the community caused by or causing the crime.

Compensation and restitution,

in their own limited ways, share this objective ; reconciliation and settlement

procedures embrace it fully.

The basic conflict lies in the competing values of the criminal law process

the representatives of the state exist so that an offence may be prosecuted to

conviction and the offender sentenced, bringing the law’s deterrent, retributive,

preventive and other forces into play.

Public attention is paid to the crime and

the criminal is dealt with for the wrong he has done, not to the individual

victim, but to the community of which he forms part.

At the other extreme, it

may be argued that if the victim receives satisfaction for any injury or damage

sustained, by compensation, apology, or any such means, or if he is simply

prepared to forgive the offence, the state will gain little by prosecuting the

offender against the victim’'s wishes.

The difficulty lies in trying to draw a

sensible line between cases which are primarily the state’s concern and those

which are of greater concern to the individual.

In many parts of Africa, the traditional role of the judge as a settler

of disputes rather than an independant umpire in an action between two

other people, is still accepted.

Surprisingly, the Nigerian Criminal Procedure

Act, unlike British-inspired legislation elsewhere in Africa (40), makes no men-

tion of reconciliation and settlement as goals in criminal trials.

It is left to

the customary courts’ legislation to emphasise this objective ; in the words of

s. 26 of the Eastern Customary Courts (No. 2) Edict, 1966

“In criminal causes a customary court may promote reconciliation

and encourage and facilitate the settlement, in an amicable way,

of the proceedings for a common assault or for any other offence

which the court has jurisdiction to try and which is not aggravated

in degree, on any terms of payment or compensation or other terms

approved by the court, and may thereupon order the proceedings

to be stayed.” (41).

Ty e

If magistrates cannot therefore promote the settling of cases, those nearer

to the people may nevertheless use a culturally sensitive technique of settle-

ment.

The Criminal

The same seems to be largely true of the Northern States.

Procedure Code, having in 1960 superseded the customary procedure in force

there adopted in their place the “compounding” procedure of the parent Indian

Studies of native court records

legislation.

The consequence was dramatic.

in 1962-63 showed that in those areas in which reconciliation and settlement

might be expected to dominate judicial policy—in particular the isolated and

mainly pagan areas of Sardanna, Plateau and southern Zaria Provinces—

the rate of settling cases by the compounding procedure was seven or eight

times as high as that in the surrounding areas (42).

There is no systematic

information available as to how often cases are compounded in magistrates’

courts but inquiry suggests that it is not frequently.

Compounding, according to the classic authority of Prinsep, J. in Murray

V. Queen-Emp (43)—signifies that the person against whom the offence has

been committed has received some gratification, not necessarily of a pecuniary

character, to act as an inducement for his desiring to abstain from a prose-

cution...”

“It is more than a mere promise to withdraw a prosecution.

It

supposes an arrangement by which the parties have settled their

differences, and in the more usual acceptance of the term implies

that the prosecutor has received some consideration or gratification

for dropping the prosecution...

The proof of the arrangement must

be similar to that which the Court requires for the proof of any

agreement which is in issue.

Unless it appears that the parties were

free from influence of every kind and were fully aware of their

respective rights, it would be impossible to give effect to a socalled

arrangement or composition.” (44)

Section 339 of the Code sets up two graduations of compounding

spe-

cified minor offences may be compounded by the parties themselves, and spe-

cified offences of a more serious nature with the additional consent of the

court.

The offences listed have only a very loose nexus.

The first list con-

tains such offences as causing hurt, minor assaults of one sort or another, and

certain forms of trespass.

It does not include theft or any offence involving

the deceptive taking of property.

It includes adultery and enticement but

not any other sexual offence.

It includes defamation and allied publication

offences, criminal into intimidation, insult intented to provoke a broech of the

The

peace, and criminal breach of a contract of service—and nothing else.

second list comprises mainly more serious versions of these offences—grievous

or aggravated hurt, wrongful restraint or unlawful compulsory labour, speci-

fied forms of mischief and aggravated trespass and, as a final solitary

enigma, uttering words or making gestures intending to insult the modesty of

a woman (45).

Their apparently greater seriousness has the effect of making

the court's permission necessary for the compounding so that the public inte-

— 259 —

rest can be weighed in considering whether or not private settlement should

be allowed.

Offences not on either list cannot be compounded (s. 339, 9).

These offences are included in the lists principally because they are the

Northern Nigerian equivalents of offences listed in the Indian legislation.

This is obviously not a good enough justification for including such a disparate

group of crimes but the draftsmen of the Nigerian legislation must be presumed

One can appre-

to have examined the rationale of the list and approved it.

ciate that because some offences are genuinely of a public nature, in that

they affect no individual directly, they cannot be compounded.

Offences by

public servants, sedition and similar offences, or counterfeiting offences, will

fall into this category.

Equally, one can see and admit the desirability of

settling offences of a personal nature, where only one other member of the

public is aggrieved—offences such as the causing of physical injury, damage

to property, adultery and defamation—yet if this is really the intention of the

legislature, why did it not include theft, deception, malicious damage, and

even indecent assault ?

It cannot be that the nature of the offender would

make it necessary for him to receive penal treatment rather than merely be

reconciled, for there is no evidence that persons committing any particular type

of offence can be classified together for treatment purposes.

And yet, if the

differentiation lies in the offences themselves—and those capable of being com-

pounded are somehow less serious than those which are not—the classifica-

tion is very obscure.

On the basis of the Indian authorities, it seems that the courts will enthu-

siastically co-operate in facilitating compositions.

There is no requirement that

the agreement be reached in court; it is sufficient that an agreement has

been reached and the courts will not inquire too closely into the details of

the agreement provided that there is adequate evidence of it (46).

Certainly,

they have not been greatly concerned about the details of consideration, for

they have commonly allowed an unconditional apology to serve as the basis

of the compounding of a case of defamation or abuse (47), and have cons-

tantly stressed that there need be no monetary consideration (48).

Whether necessary or not, it is certainly common in Nigeria for compoun-

ding to be accompanied by the payment of compensation in one form or ano-

ther.

The Indian cases suggest that if compensation has previously been

secured in a civil action, compounding should be encouraged and, where the

Conversely, if

court’s consent is necessary, it should be readily given (49).

the offence is compounded to the satisfaction of both parties, a subsequent

action for damages should be barred (50), though it is certainly possible to

envisage some circumstances (such as where inadequate compensation has been

accepted), where this rule might not be strictly applied.

I believe that the courts would be strengthened as agencies primarily

concerned with promoting social peace and order if they were all given the

power to use the reconciliation or compounding procedures and encouraged

to do so.

— 260%—

Any machinery which can be used to seduce the distance between people

in conflict will serve the community better than expedients which by their

authoritarian nature confirm social differences and perpetuate disharmony.

4

CONCLUSION

One could go on through all the forms of non-institutional treatment and

show their potential value in coping with some of the problems created by

criminals.

The rethinking of the problems of fining, the restriction of the im-

prisonment of first offenders or young adults, the rationalisation of bindings

over and discharges, the revitalisation of the various probation services, the

revamping of the mental health services, the introduction of extra-mural penal

labour, the refashioning of group sentences, and of course the discussion of

the major problems of capital and corporal punishment—all these questions

could occupy us indefinitely.

First, that it may be

All | would suggest at this stage is two things.

wrong to think that many non-institutional sanctions—particularly those invol-

ving compensation and reconciliation—have much relevance to the problems

of professional and habitual crime.

They may not : they may be more appr-.

priate for dealing with offenders on the fringe of serious crime.

But secondly,

whether they are or not, it is the whole attitude of the community to its crimi-

nal problems that is at stake in the world today.

It is to these attitudes and

to the creation of rational decision-making machinery that | would now like

to turn.

Il. — THE STRUCTURE OF SENTENCING

The responsibility for dealing with criminal offenders is shared between

various social institutions.

The range of sentences which can be prescribed

is determined by the legislature and it, or bodies deriving their authority from

it

’

will specify the more limited range which can be imposed for particular

offences.

The courts will select from this range the sentences of the type

and severity they consider appropriate to offenders they have found guilty.

Lastly, the carrying out of the sentence will normally be the responsibility

of those who administer the systems of sanctions.

1

The conferring of discretion

The types of penal legislation found in Nigeria have until recently been

virtually indentical with those in England, for obvious reasons of historical con-

nection.

The constitutional requirement that criminal penalties be “prescri-

— 2048 =

bed in a written law” (51) has usually been met by stating a maximum penalty

for each offence—in terms of length of imprisonment or amount of fine—

and the mandatory sentence has been rare.

Provisions exist making alternative

penalties available in most cases, by allowing imprisonment in default of the

payment of a fine (52), fining instead of imprisonment (53), corporal punish-

ment (54), discharges and binding over (55), probation (56), and so on.

But

the discretion has never been totally complete.

There have always been res-

trictions on the type of sentence which can be passed for certain offence

if only a fine is specified, imprisonment or any more severe penalty cannot

be ordered ; if imprisonment is required, with or without a fine, no lesser

sentence will be valid (57); and liability to the death penalty was never

assumed to be discretionary before the novel 1966 legislation (58).

There

have always been restrictions, too, on the type of person who can be subjec-

ted to specified penalties, notably the age restrictions on hanging, imprison-

ment (59) and caning (60).

It is only since 1966 that the discretion has been drastically limited. As

part of the programme of new laws dealing with the state of emergency, the

military governments introduced three different kinds of restriction on sentencing

powers—the mandatory sentence, the minimum sentence and the

judicial

direction.

All had heen used before but the regularity with which these

devices have begun to find their way into the legislation distinguishes recent

years from those of the previous civilian regimes.

A mandatory sentence is one which a court is required to pass, on

convicting an offender, without exercising any discretion at all either as to

type or severily (61).

Formerly, the death sentence was the principal example

of this kind of sentence and, though it has recently been made discretionary

for some types of offences, it has been retained as a mandatory sentence for

The policy has also been extended to non-capital crimes by

others (62).

provisions which require a court to impose imprisonment without the option of

fine in certain cases (63) and one specified penalty and no other on a second

or subsequent conviction for some other offences (64).

The minimum sentence has become even more common.

This requires

a court to pass a sentence of imprisonment or fine of not less than a specified

minimum (with no specified maximum) or in a range for which both a minimum

and a maximum are specified.

The sentences are extremely severe, ranging

from not less than life imprisonment for certain forms of aggravated robbery

in the Northern and Western States. through minima of 21 years, 20, 15, 14,

down to 6 months.

For some types of offences or offenders, minimum fines

have been prescribed ; for others, a minimum number of strokes of corporal

punishment,

What is of lasting significance to the criminal law is that the

minimum sentence technique has not been restricted to emergency legislation

— 262 —

Lut has been carried over, for instance, into the new robbery laws (65) into a

vast range of property offences in the Northern States (66) and even into the

Western State’s Homicide by Reckless or Dangerous Driving (Summary Trial

and Punishment) Edict, 1968.

The judicial direction is much less common and is not a real restriction.

It is in effect statutory guidance as to the sentencing policy the courts should

follow in specified cases, which does not bind them if they see compelling

reasons to the contrary.

In the Indian Hemp Decree, 1966, for example,

s.10 (b) specifies the caning of male offenders under 19 unless it appears to the

court that there are strong reasons why it should not do so in a particular

case ; s.11, a provision for once stressing rehabilitation, requires young offenders

under 17 to be dealt with by probation, committal to an approved school, a

fit person order, or by taking security for good behaviour, unless it appears

that there are strong reasons why the court should not do so in a particular case.

2

The reform of the structure

In the Nigeria of the future the basic structure of sentencing is bound to

remain roughly the same, with a maximum sentence specified by legislation in

respect of each offence.

Going beyond this purely verbal charge, however,

| suggest that three important alterations could be made in the structure.

a)

STANDARDISATION OF MAXIMUM SENTENCES

No detailed rational justification can be offered for the variations in the

‘Whether

maximum punishments specified in Nigeria's criminal legislation.

offences deserve punishments of six months or a year, two years or four years,

five or ten, must be entirely a matter of opinion.

It is clear, however, that

basic principles require this judgment to be made and the general public made

aware of the range of sentences possible for the individual offence.

But since

the abstract

gravity of any other, what is needed is the conscious grouping

together of offences with the same sentencing range.

This is the expedient adopted by the American Law Institute in framing

its Model Penal Code and, nearer home, in the Ghana Criminal and Criminal

Procedure Codes of 1960.

Both retain the traditional structure of felonies and

Tisdemeanours and use it as the basis of sentencing. There is no magic in

this

any other nomenclature would do.

The problem is simply one of di-

viding up the total number of offences in a convenient number of groups, each

of which will carry a different maximum sentence.

The American solution is

to divide ““felonies” into three degrees and “misdemeanours” into two, lea-

O

ving a final minor category of “violations”.

Minimum and maximum terms of

imprisonment and maximum amounts of fine are specified, giving the follo-

wing structure

m———

—

SEI;TENCE

=

=

————

-

=

=

—

OFFENCE

IMPRISONMENT

FINE

Minimum

Maximum

Maximum

=

——

R

—

Felony :

|

|

PRI

life

10,000

First degree

1-10 years

8

Second degree

10,000

1-3 years

10 years

R

Third degree

“ee e

5,000

1-2 years

5 years

Rl

Misdemeanour :

Ordinary

“ e e e e e

1 year

$

1,000

Petty

S e e o0 s e

30 days

$

500

Violation

“ e s ee e e

$

500

=

2l

1L 2es

|

Tt

The information is based on ss. 6.03, 6.06 and 6.08 of the Proposed

Official Draft of the Code (1962).

The Ghana Codes use five categories but of a somewhat different nature.

First come capital crimes—omitted, of course, in the American draft; felonies

are then divided into two and misdemeanours left undivided.

A special cate-

gory of property, fraud and corruption offences, however, straddles the two

groups and uses a separate maximum penalty.

Summary conviction offences

make up the sixth category.

The structure is as follows

— -

=

—

——

OFFENCE

éENT’ENCE

|

\

Capital offence

DR R A R Y

Death.

Felony :

Maximum

: life.

First degree

D R

Maximum

Second degree

D I R R Y

10 years

Maximum

3 years

Misdemeanour

GEOTORG R O OAEG GO0 EHGE0 U0 O Ow 50

DR I R R R R PP

Maximum

: 25 years

Special offences

DR OO OeOR0 OO (G G R ORD

Fine only

Summary conviction

S e

e e

it

RSN e

PR TS

N

The information is based generally on the Codes and in particular on

s. 296 of the Criminal Procedure Code.

— 264 —

Both American and Ghanaian models provide for alternative sentences

and extended terms of imprisonment for persistent offenders.

Whether five

or six categories of offence is too large or too small, or whether the minima

and maxima suggested are appropriate to Nigeria does not matter much.

What does matter is that a classification scheme of this general type should

be set up and existing offences allocated to the different categories.

How the

offences should be categorised would need to be the subject of detailed

consideration and a regular review of the contents of categories in the light

of changing social circumstances would need to be undertaken.

3

Significance of maximum sentences

The courts will continue to choose the upper limits of the sentence to

be passed.

In the case of sanctions not involving imprisonment, no further

review will be necessary : the offender will pay (or not pay) the fine, tender

the compensation, or make the restitution.

In the case of all

sentences of

a continuing nature, however—by which | mean all custodial sentences, pro-

bation orders, and orders for extramural labour—review of the ongoing sen-

tence will be necessary.

The point is simply this : that however skilled a court may be in mani-

pulating the different objectives of punishment to arrive at a particular sen-

tence, and however sage it may be in adopting the recommendations made by

experts for dealing with an offender, it will always be true that the court is

speculating about the suitability of the sentence.

Since it does not supervise

the execution of the sentence itself and so has no continuing responsibility for

enforcing it, or continuing opportunity of correcting any misjudgment it may

have made in choosing the sentence in the first place, regular reviews should

be carried out.

In the case of probation, the probation service itself is responsible for

It does

maintaining contact with the probationer and supervising his progress.

not have any power to vary the terms of the order but if any substantial

change takes place in the circumstances of the offender can always refer the

case back to the court which made the order.

In three forms of custodial

order, administrative discretion is exercised in determining the length of an

offender’s custody, depending upon his condition.

Sentences of life imprison-

ment are always the subject of periodic review and offenders seldom find them-

selves incarcerated for the duration of their natural lives.

Release may be

ordered when the prison authorities recommend that the offender can safely

be let out into the community.

All sentences of detention during the Govern-

ment's pleasure, which apply to persons found unfit to plead or guilty but

insane, pregnant women under sentence of death and youths too young to

be executed, are similarly indeterminate sentences.

Release may be ordered

when it is safe to do so. Thirdly, borstal training has an indeterminate aspect,

in that the period actually spent in custody will vary according to the individual

offender’s response to training, and when the decision for release is made

— 2065 —

(by the borstal authorities) the balance of the sentence will be passed on licence

outside the institution.

In these various ways, therefore, the wisdom of the court's original order

can be kept under scrutiny and the retributivistic and deterrent force of the

order modified by the authorities’ experience of the offender’s progress and

their estimate of whether he will make a satisfactory social readjustment.

It

is a system which has much to commend it and which could well be extended

to all custodial sentences for a definite term, either by the simple expedient

of parole or the institution of a sentence review board.

4. Minimum sentences

As we saw in the table above, the minimum sentences has been adopted

by the Model Penal Code for all but the least important offences.

Nigeria

too, particularly since 1966, has adopted the technique.

With adaptations

it could usefully be retained as a regular part of the sentencing structure.

There is no doubt that the existence of a minimum prison sentence pro-

vision may be a useful catalyst, in making the courts think seriously about

whether they should impose imprisonment at all (67).

That the courts have

no great love of minimum or mandatory sentences is clear both from history

(68) and in modern Nigeria (69).

The problems with the current Nigerian

legislation are twofold.

First, minimum prison sentences are made mandatory,

and the courts given no opportunity of imposing another kind of sentence ;

secondly, the severity of the minimum sentences of imprisonment presents real

administrative difficulties.

If an offender is going to be sent to prison at all, there is a real case

This could be

to be made for avoiding the very short term of imprisonment.

achieved by fixing a low minimum sentence, such as the one year period sug-

This would allow time for the offender to

gested by the Model Penal Code.

be put through any necessary classification procedures within the prison sys-

tem, allocated to a prison, and given the opportunity of doing some cons-

tructive work or training, if this is what is needed (70).

But this is only if

the courts feels that the circumstances of the offence and the offender require

imprisonment ; if it does not, its discretion to order an alternative, and perhaps

more constructive sentence, should not be removed by making imprisonment

mandatory.

On the other hand, it is very hard to justify the long minimum prison

sentence.

The clear policy is deterrence and prevention but the effectiveness

of the deterrent is completely unknown and the implications of long preventive

regimes have never been explored in Nigeria.

What is easily predictable is

that the large number of high minimum sentence provisions, especially in the

Northern States, will inevitably stain the accomodation in the overcrowded

prisons to breaking point, that the physical and psychological consequences

to the offenders subject to these regimes ,especially if in maximum security

— 266 —

prisons) may be disastrous, and that any discretion to release prematurely,

which the authorities ought to possess, will be drastically interfered with.

And

whatever preventive value the long minimum sentence may have in dealing

with persistent offenders, one must remember that in its mandatory form it

is totally undiscriminating between different types of offenders, and first

offenders will be liable to the sume sentences as the habitual criminal against

whom preventive measures may be more justified.

Ill. — THE JUDICIAL SENTENCING PROCESS

Perhaps one of the more obvious merits of either a formally or informally

standardised sentence is that it operates to remove the disparity between diffe-

rent judges’ views of the seriousness of similar types of behaviour.

It is

obvious that these are difficulties involved in making a precise estimate of

the seriousness of conduct and there is everything to suggest that the judiciary

is concerned with these problems.

But the fact remains that disparities bet-

ween sentencing decisions can often be explained only in terms of the moral,

Research studies

in

social or economic attitudes of the individual judges.

England and the United States have focused upon the disparities (71) and

the attitudes which may rise to them (72) and have all stressed the theme

of the lack of objectivity in the sentencing process.

Certain kinds of variations can be shown in the study of Nigerian sen-

tencing.

In a series of 1571 cases (1335 sentences) tried in four Northern

magistrates's courts in 1962, for example, the use of imprisonment varied bet-

ween 45 9, of the sentences at Makurdi and 18 % at llorin.

The llorin

court disposed of only 15 9% of its cases of imprisonment by sentences of

3 months or less, whereas in Jos 40 %, of the sentences of imprisonment

were of this duration.

And whereas only 24 9, of all the sentences in Jos

were fines, in llorin they accounted for 74 9.

Makurdi apart, there was

nothing to indicate any major difference in the types of cases dealt with (73).

In the sphere of native court activity in the same Region, the returns of

the courts of the same grade show no narrower a range of methods of dis-

posing of cases. In the 30 Grade A limited courts in 1962-63, the percentage

of sentences represented by imprisonment ranged from a median of 28 Y5

to the extremes of 64 9, in the court of the Chief Alkali of Adamawa and

8 9, in that of the Chief Alkali of Bauchi.

And while the latter court's rate

of fining (88 %) was far in excess of the median of 68 9, the opposite end

of the scale fell as low as 20 % in the court of the Chief Alkali of Kano.

The unfortunate defendant before the Emir of Fika would take little comfort

from the fact that 58 9, of the sentences of imprisonment in that court were

for over a year; he would much rather have been before the Chief Alkali

of Argungu, of whose prison sentences only 7 % were of this length and

72 %, for three months or less (74).

— 267 —

For many years, criminologists have urged that many of its problems

would be eased if the responsibility for sentencing were withdrawn from

the trial judge and entrusted to an administrative board.

The judge’s expe-

rience of an

involvement in the actual

correctional

process

is said to be

Such a board could

insufficient to qualify him to pass sentence effectively.

draw upon the skills and experience of social workers, psychologists, psychia-

trists, probation officers and experienced prison personnel, as well as upon

judges, and could co-ordinate the accumulated research experience bearing

upon the sentencing problem and their own personal insights into it.

The

Youth Avuthority and Adult Authority of California are often referred to as

models of the type of system to be followed (75).

'Whether they are models which are well suvited to conditions in the Uni-

ted States or Europe is not beyond dispute ; they have certainly not been wi-

dely adopted there.

At the present stage of the development of the Nige-

rian penal system the models seem truly inappropriate.

Firt, there is an

acute shortage of experienced personnel in the fields of social work, psycho-

logy and psychiatry. Secondly, there is a complete absence of Nigerian offen-

ders and the effectiveness of particular kinds of sentences.

If there is dissa-

tisfaction with sentencing by judges, therefore, improvement must be sought

by making them better equipped to carry out the task rather than by taking

it away from them completely.

Judicial sensitivity

The Nigerian judiciary has always been a social elite in many ways

cutt off from the problems of Nigerian society.

The colonial judiciary and

magistracy frequently stood at a distance from the indigenous community,

lacked a knowledge of its habits and an awareness of its though patterns.

Regular movement around the country from one station to another, interchange

between different colonial territories, and lengthy absences from the country

on leave, all conspired to prevent the judiciary becoming intimately familiar

with the life of individual areas.

It was a weakness inherent in the system

of colonial government but it was exaggerated in the case of the judiciary

because the smallness of its numbers made it more mobile than the general

administrative service.

Only the judiciary at the lowest level—the native and

customary court level—could genuinely claim to be in tune with the spirit

of the community in which they worked.

Now, in addition to this basic substratum of the judiciary, its

higher

And the division of the coun-

levels have become almost exclusively Nigerian.

try into states, designed to encourage ethnic homogeneity, will in the course

of time bring increased stability into judicial conditions and the greater iden-

tification of the judiciary with community problems and their solution.

The

process that has for years been developing particularly in the Western and

Eastern States will slowly take root in the others.

— 268 —

Inevitably, in many ways the judges will remain a social and economic

elite but the cultural gap between the judge and the criminal, the sentencer

and the sentenced, will equally inevitably have the chance to diminish.

His-

tory has shown that the growth of democracy and the democracy and the

development of means of communications throughout the world have placed

in authority :

... persons who had much the same experiences as the defendants ;

one was tried by his peers who understood his situation and looked

upon him as a human being like themselves...

These developments

enabled a larger proportion of the population to appreciate the situa-

tion of those who committed offences, so that the imposition of pains

or suffering was no longer similar to the injury of an animal or of a

foreign enemy but was the injury of another human being like

themselves...

And contacts that were frequent and intimate increa-

sed, with the result of greater understanding and a keeper sympathy

for criminals (76

)'ﬁ’

It must be allied with

But increased judicial sensitivity is not enough.

changes in the official conception of the sentencing process; judges must

become increasingly alive to the consequences of their actions and be supplied

with more adequate information on the basis of which they can choose effective

sentences.

Judicial education

A beginning should be made at an early stage of a judge's career.

The study of penal problems should be part of all degree courses in law in

the Nigerian universities, and any sub-university level training courses (such as

It will

those in Zaria for the area court judiciary) should incorporate it

offer no easy solutions but it will create an initial awareness of the nature and

scale of the problems.

As was recommended in England in 1961 (77), all

sentencers should visit penal institutions, both on appointment to the bench and

regularly during their tenure of office, not simply as official visitors as at

present (78), but for the purpose both of examining the running of the institu-

tions and of discussing with their staff the nature of their problems and the

solutions that are being found for them.

It is as long as 30 years ago that

magistrates and administrative officers in Kenya were advised to visit the

Nairobi juvenile reformatory—*‘to get first hand knowledged of what happens

to the offenders they commit...” (79).

And the responsibility of the judges to

make these visits should be acknowledged by the executive : | know of instances

some years cgo in the Northern States of refusal to allow groups of alkalai

to visit prisons outside their own areas on the ground of the disruption it might

cause to prison routine !

As the probation services become better established,

it is imperative that case committees be set up so that the sentencer can have

regular contact with the work of probation and access to the experience of

the social welfare officers.

— 269 —

For judges to be educated on a broader basis, regular conferences should

be held for the judiciary, as has been done in an ad hoc way in the United

Kingdom in recent years and more systematically in the United States (80).

Common sentencing problems can then be discussed from the viewpoints of

different judges and their ideas weighed with those of psychologists, psychia-

trists, social welfare officers, prison staff, and others concerned in the correc-

tional process.

The Nigerian Society of Criminology should be developed,

by government subsidy if necessary, so that it can become a genuine forum

for the discussion of ideas and problems by all those professionally involved

in working with offenders.

In particular, it should keep on trying to reach out

to the judges. who gave it less than an enthusiastic welcome when it was

inaugurated in 1964,

The contribution of the judiciary

The courts themselves can, of course, do something to systematise the

process of sentencing.

Their efforts could be directed into the two channels

of following up the results of their own sentences and of making sure that

any guidance they feel able to give on sentencing principles is in fact brought

to the attention of the lower courts.

It is certainly not asking too much that all courts advise themselves of

the effects of sentences they pass.

The least that can be expected of any

public official entrusted with power in the name of the community is that he

consider whether he is achieving by his exercise of the power that which he

sets out to achieve.

This assumes, of course, that he does have some objective

which he can articulate—and later in this chapter | shall suggest that he

should in fact be required to articulate his objectives.

The courts are certainly

busy and as at present organised have little time or opportunity to concern

themselves with the long-term effects of their decisions.

But if the principle

of concern is accepted, it follows that their judicial caselead should be redu-

ced to allow them the time to consider information about the subsequent beha-

viour of offenders they have sentenced. When custodial sentences are passed,

this information could take the form of periodic reports on behaviour and ad-

justment from the authorities, and where social welfare supervision of any

sort is required, progress reports from the social welfare authorities would

meet the need.

In both cases, though, vital information will be that which the

social welfare authorities should provide after the sentence has been com-

pleted

at the time, that is, when the offender is again at risk and any im-

pact of the sentence can be observed.

As a strat, judges might well be

authorised to obtain such reports in the case of particular offenders in whom

they have a special interest ; at a later stage, as facilities become more deve-

loped, the scheme could be extended to all offenders who would be subject to

the proposed requirements of mandatory pre-sentence report.

— 9701 —

A further matter on which the judges might ask to be informed is the

If, as we have

effect of sentences passed specifically as general deterrents.

seen, it is common for the courts to express concern about the prevalence of

offences similar to those before them and pass sentences intended to deter

future law-breaking of those sorts, then at least they should have the means

of finding out whether their sentences do in fact deter.

Lists of cases for trial

at subsequent sessions are not enough : the judge should try to discover from

the police, and from social welfare, police and prison personnel in regular

contact with prisoners and their home environments whether the lesser has

been communicated and whether it has been

learned.

In particular, close

attention should be paid to subsequent crime in the same community or offences

by the criminal’'s known associates.

The general deterrent effect of strong

words and harsh sentences has yet to be demonstrated convincingly to most

observers other than the judges and if empirical evidence of the truth or

untruth of their assumptions can be produced it is better that it should be

made available to them.

Further, as has been urged in England (81) and as appears to be the

practice in juvenile cases in Israel (82), there is a strong case to be made for

requiring trial courts to give reasoned and recorded justifications for senten-

ces they pass.

The justification for this is not merely the democratic one that

an offender being dealt with in a particular way has every right to know

why, but also that the duty of self-justification might make the courts scrutinise

their motives and reasons more carefully and lead to the elimination of irra-

tional or ill-jugded sentences.

At present, there is only an isolated require-

ment in the Western State that courts record the prevalence of crime in the

area when sentencing deterrently (83).

The requirement should be institu-

tionalised and made more demanding ; all reasons for sentencing should be

stated and the evidence on which the reasons are based (police reports, so-

cial welfare reports, etc.) recorded.

Such a record would also be a con-

venient reminder to the judge of the factors which were present in his mind

at the time of sentence, when, as suggested above, he receives follow-up

information on the effects of his sentence.

The existence of records of this sort would also help in the building

up of a body of sentencing precedents.

In addition, until the rebirth of

effect law reporting in Nigeria, the practice of the Chief Justices in circula-

rising the courts with information about recent developments in practice should

both be intensified and explicitly extended to include guidance on sentencing

principles.

If, as seems to be the case, it is the apathy of members of the

bar which makes law reporting a non-commercial venture in Nigeria, consi-

derations of the public interest should lead to the state government and the

courts taking immediate steps to reorganise this invaluable professional service.

Judicial decision-making without recorded precedent is possible ; but in an

area of judicial activity so urgently in need of rationalisation it is particular

important that the lower courts receive at once wathever effective guidance

can be offered by the higher courts.

— 2711 —

Need for research

Bust most of all, basic research is needed into the aetiology of crime

and the efficacy of criminal sentences.

The government and the universities

must be prepared between them to finance this work and the authorities

whose work is scrutinised will need to accept that the information is being

sought out of a genuine desire to evaluate the system and not with a view

merely to criticism and change.

What is particularly important, however, is

that work of this highly complex nature should not be entrusted to unqualified

hands ; there is a frighteningly large accumulation of the research experience

and of the trials and errors of other countries to be examined before Nigerian

research

is mounted.

The technical lessons can only be properly learned

by those properly qualified to appreciate their significance.

Use of research material

It is most important that research undertaken should be geared to the

practical problems with which the courts and those responsible for the opera-

tion of the penal system have to deal.

It is not enough at the present time

that @ mass of research material should be produced which will be of inte-

rest but not of direct use.

Financial support for research will be limited and

expenditure will need to be controlled by the value of the results achieved.

There are four ways in which research results can be communicated

to the judiciary.

First, there is a real need for genuine guidance to the courts

on how to choose sentences.

It could perhaps take the form of a manual

which could be made available to all the courts, on the lines of the English

Home Office publication The Sentence of the Court or the Desk Book (84)

of the American Federal courts.

It would explain the significance of each

alternative open to a court and would, as an improvement on the English

model, deal in some detail with the wide variety of statutory and other legal

rules governing sentencing.

It would also incorporate research results as they

became available to demonstrate to the courts in general terms the success

or otherwise of their sentencing policies...

‘Whether, in the absence of re-

search -data, such a manual should explicitly tell the courts what faciors to

consider in passing sentence, is less clear (85).

Aggravating and mitigating

factors, pure and simple, could clearly be omitted, as the courts will be able

to ascertain these for themselves.

Factors drawn from the experience of

personnel in the penal system could usefully be stated, in the same way as

their personal recommendations could usefully be received in evidence, but

should manifestly be presented as helpful opinions not backed up by syste-

matic validation studies.

All factors which are purely speculative should be

omitted.

Secondly, assistance can be given to the bench in individual cases by

the development of predictive criteria based on Nigerian experience.

— 272 —

This is a particularly valuable contribution of the sentencing process which

The work of Professor and Dr. Glueck

has been much neglected in the past.

in the United States (86) and of Dr. Mannheim and Dr. Wilkins in the United

Kingdom (87) show that much can be learned from the detailed study of the

social and personal characteristics of offenders and their correlation with

their behaviour during and after specified forms of penal treatment.

Just as

no prediction table can tell a judge which sentencing policy to adopt, it can-

not tell him either how any given offender will inevitably react to treatment in

a certain way.

But it can tell him what statistical chance there will be of the

success of that treatment on an offender whose background and characteris-

tics have been studied and compared with those of offenders who have pre-

viously, successfully or unsuccessfully, been given similar treatment.

The aim

is, to quote Professor Glueck (88) :

‘““...not to substitute statistical tables for judicial experience in the

sentencing of offenders.

It is rather to supply the judge with an

instrument of high promise in his work of individualizing justice...

The tables are... designed to help the judge to see the individual

offender in the prespective of organised experience with hundreds

of other offenders who, in many crucial respects, resemble the per-

son before him for sentence.”

Thirdly, the judges can be familiarised with the results of research work

through the educational and similar means mentioned earlier in this chapter.

Indeed, it is principally through conferences and training courses that infor-

mation can be kept up to date.

Similarly effective, however, right be a

All offenders

greater use of social information in argument before the courts.

are given the opportunity of showing cause before sentence is passed and,

in the hands of able and informed counsel, this could well be a svitable

occasion for presenting to the court current information about the offender,

the possibility of the success of various forms of penal treatment, or about

the other limitations of the various alternatives open to the court.

‘What is

unfortunately true at the present time is that most counsel do no have this infor-

mation available to present to the court and there is no indication that the

court would welcome it (89).

Pre-sentence reports

It is clearly right that the courts should continue to receive background

information about the offender to assist it in choosing an appropriate sen-

tence for him, and that the facilities should be extended.

It is only by making

an informed decision in the social context of the offender that a court can

hope to have a deliberate rather than an accidental effect on this future

career.

The crucial questions are :

a)

in what cases should social inquiries be made and reports made to the

courts ?

b)

who should make the reports ? and

— 273 —

<)

how the factual information reported should be translated into the choice

of sentence.

a)

CASES IN WHICH REPORTS SHOULD BE MADE

The immediate crucial limitations is the number of social welfare officers

available to make the inquiries and present the reports.

If constructive poli-

cies are to be pursued in the future it is obviously essential that the number

of officers should be rapidly expanded.

It is unlikely, however, that the expan-

sion will allow the allocation of even one officer to each magistrate's court

throughout the country, and the customary and area courts will only have the

benefit of the sporadic services of local government personnel.

For this reason it is not really practicable to consider adopting the

English or American solutions for some time.

Following the recommendations

of the Streatfield Committe in 1961, the English Home Office made provision

in 1963 for social inquiries reports to be made for all offenders up to the age

of 30 and dll first offenders above that age appearing in the superior courts.

Where special forms of custodial sentence may be passed, prison and borstal

authorities will also make suitability reports.

Reports on all cases in the

juvenile courts and in potential probation cases continue to be made automa-

tically (90).

By art. 7.07 of the American Law Institute’s Model Penal Code,

no court shall sentence an offender without a pre-sentence investigation where

he is convicted of felony, or is younger than 22 and has a previous conviction,

or the court wishes to order either probation or an extended term of impri-

sonment.

Even in developed penal systems it is not practicable to make reports on

all types of offenders in all courts and with a view to all types of sentence.

In Nigeria, even assuming a much-enlarged social welfare service, it is much

less practicable.

But the time will come when some guidelines will have to

be drawn.

| suggest that inquiries be automatically carried out and reports

made to the courts in the case of :

i)

all offenders not more than 21 years old ;

ii)

all offences for which the court is considering using probation,

the settlement techniques dealt with in Chapter 5 as exclusive

measures, the new measures proposed earlier in this chapter

or passing a sentence of imprisonment in excess of five years.

In this way the courts will obtain the fullest information about all young

offenders, who may be more susceptible to readjustive techniques than older

ones, and about some of the situations which presuppose a very complex

decision.

At a later state, both categories could be extended—on the one

hand extending the age range, on the other specifying a wider range of

complex decision-making situations.

— 274 —

A word should perhaps be said about the special position of medical

SO

reports, and in particular psychiatric reports.

Psychiatric services are

limited that it is totally impracticable to make rules requiring automatic psychia-

tric examination and report of large groups of offenders.

It should none-

theless be regarded as a matter of high priority for psychiatric reporting

facilities to be increased to the extent that all offenders who are liable either

to the death penalty or to heavy sentences of imprisonment should be automa-

tically examined.

Consideration should also be given to the desirability of

requiring automatic reports in the case of offences which may be expected

in Nigeria, for

to show up pathological mental conditions more than others

example, a wide range of sexual offences may well fall into this category.

In capital cases, of course, the psychiatric evidence will be directly relevant

to conviction or not and also to what course of action the executive should

authorise if the offender is not executed ; in the other cases, it will be an essen-

tial prerequisite to the making of a court order for treatment, if the courts

were to have the power to make hospitalisation orders and otherwise valuable

information in helping the courts to decide upon the wiseness of custodial or

alternative sentences (91).

But in every case in which a court feels that it can usefully learn some-

thing from a social welfare report, a suitability report, or a medical report,

it should have the power to ask for one to be prepared.

And it should use

the power.

b)

WHO SHOULD MAKE THE REPORTS

In only one kind of case is the source of the report beyond question

that is the case of a medical report.

Physical health can only be the subject

of a report by the prison medical officer, or through him by the local hos-

pital.

Psychiatric reports can only be made by government-employed psy-

chiatrists.

In neither case is there any alternative.

The four other sources of reports at present available should continue

to be made though it is clear that developments in form and content will be

necessary.

It should be possible for police antecedents reports to be made

with greater accuracy and frequency as central record offices become more

efficient and communications between different parts of the country gradually

improve.

There is little reason why it should not be possible for reports to be

available in respect of all persons tied in the High Courts and for the great

majority of those tied in the magistrates’ and upper area courts.

At present,

the scandalously long periods spent in prison by many prisoners awaiting trial

should make it a relatively simple matter to obtain reports in time ; even with

a speedier despatch of the courts’ business, which on hopes will come about,

shortage of time should not normally be a problem.

The two types of reports which are crucial for constructive sentencing

policy are the social welfare officer’s report and the suitability report of the

— 275 —

The former should contain virtually

Prisons Department or remand centre.

all the social informations about an offender which the court needs to give it

a picture of the offender in his social setting—whit his family background

and home conditions are, his attitudes to his employment or school and to his

offence, and his reponse to previous sentences.

From the report there should

appear as clear a picture as possible of whether the offender is a leader

or follower, gregarious or isolated, normal or inadequate, health or sick,

casually delinquent or persistently criminal (92).

Suitability reports are currently required by statute in the case of offen-

ders libale to borstal training and in practice are given in respect of young

offenders by the staff of remand centres when the offenders have been in

29

custody awaiting trial.

In theory, there is no reason why “suitability

should

not be a consideration in the case of every custodial sentence, or indeed any

sentence at all.

In practice, the burden would be too heavy, for reports would

then be necessary on all offenders, for all offences, and for all possible sen-

tences.

If the recommandations made earlier in th's chapter were to be

followed, the range of reports would be limited but would still be wider than

that at present made available.

All juveniles and all potential borstal trainees

would need to be reported on—and arrangements would have to be made to

report on offenders remanded on bail as well as in custody—together with

those for whom the court is considering long sentences.

The critical problem is that of the content of the reports.

Social and

personal circumstances will be subject of the social welfare report.. The sta-

tutory requirements for the reports at present required before borstal training

are of information “on the offender’'s physical and mental condition and his

suitability for the sentence”.

The first two characteristics are no doubt rele-

vant to an offender’s ability to bear a rigorous course of training and the

court should clearly know—as ideally it should know in all cases involving

custodial sentences—that he is physically fit enough well motivated enough and

intelligent enough to undertake a course of training.

“Suitability” presuma-

bly refers to his ability to profit from such a course and poses rather more

intricate problems.

They concern a difficulty common to all reports by social

welfare and prison or borstal personnel, which will be dealt with next.

<)

THE CHOICE OF SENTENCE

It follows that if the reports made to the courts are to be really valuable

in assisting the choice of sentence, they must offer to the courts not merely

factual information about the offender’'s past and present situation but also

an informed estimate of whether the court can effect his future behaviour.

A link must be forged between the observed effect of past sentences and the

sentence the court is now considering passing.

The experience of the social

welfare officer or the experienced prison or borstal officer may help the judge

to forge this link for it is experience which the judge does not have and

information which is not otherwise available to him.

— 276 —

It should therefore be regarded as one of the prime functions of reports

by social welfare officers, remand home staff and borstal officers (whether

remand centre officers or not) to offer the courts a synthesis of the experience

of the correctional services in relation to offenders of the type before the court.

This will not be removing the sentencing function from the court : the judge

will still have the ultimate power of decision and will need to strike the

balance between the various sentencing objectives.

In estimating the feasibi-

lity of social readjustment, it is just that he should give proper weight to the

experience of these who are, as he is not, directly concerned with the problems

of bringing about a social readjustment.

What must be stressed, however, is that does not give the reporting

officers total freedom to speculate for the benefit of the court but only to tell

it of their own limited experience and the experience of their department.

A social Welfare officer, accustomed to supervising probationers and dealing

in the course of his professional work with the social and personal effects of

imprisonment, corporal punishment, and other penalties, may be able to present

to the court a wealth of experience.

He may be able to say that the offender

has a stable background and that he is unlikely to commit another offence, so

that probation is unnecessary ; or that probation stands a good chance of

diverting the offender from crime; or that probation may help, but closer

custodial supervision would be better suited to the offender; or that corporal

punishment would probably embitter an offender so much that he would be

confirmed in crime.

A borstal officer may be able to say much less.

His experience, and that

of his colleagues, will be limited to borstal and prison work. He may be able to

say that offenders of similar personality to the one being tried have made apt

or inapt pupils for industrial training, that they have conformed easily to

institutional life, or been constant disciplinary problems.

But normally his

experience will end here, for he will have had no opportunity of seeing the

effectiveness of training once previous offenders have been discharged and so

any estimates he may make of the likelihood of “success” in training will lack

the validating element.

Reports, too, which are based solely on observation of

an offender during a period of remand in custody, will have an artificial basis,

for a brief period of institutional life under the pressure of impending trial and

conviction, may not be the best possible circumstances in which to make an

assessment which will have lasting significance.

What is absolutely vital in all cases is that the cumulative experience of

the social welfare and prison departments should be brought to bear on the

problems and rapidly systematised.

This is a necessary prerequisite to the

making of any predictions, however rough and ready they may be. Wherever

possible, an individual officer making a report which includes the expression

of opinions about the efficacy of various sentences, should try to draw on the

opinions of his colleagues who are similarly experienced.

But most of all,

there is an excellent case to be made for the social welfare and prisons

departments themselves undertaking the preliminary work in the construction

— 277 —

of prediction indices

They have access to the offenders and they have the

means, or at least some means, of following-up offenders when they have

completed their sentences

Since it is only is the result of intensive research

into the effect of various sentences on large groups of offenders that systematic

prediction information can be given to the courts, these departments should

perhaps share with the judiciary the primary responsibility for organising

studies, the results of which will be available to guide future judicial action

Follow-up inquiries, even if only confined to the simple datum of reconviction

within a specified time or not, should be undertaken immediately in respect of

offenders who have undergone sentences of certain types and attemps made

to correlate their

success

or “failure” with known facts of their personalities

and

records

Estimates of the possible effectiveness of sentences made in

reports to the courts will then at least have the backing of empirical studies

FOOTNOTES

Throughout this paper, unless otherwise indicated, references to the Cri-

minal Code and Criminal Procedure Act are meant to be fo the Code and Act

themselves (Logas State) and the virtually indentical legislation in the other

Southern States

References to the Penal Code and Criminal Procedure Code

are to the codes in force in the Northern States.

The Laws of Western Ni-

geria, 1959 apply to the Western and Mid-Western States unless otherwise

indicated ;

the Laws of Eastern Nigeria, 1963 to all the Eastern States ; the

Laws of Norfhern Nigeria, 1963 to all the Northern States

In case and sta-

tutory references, the abbreviations M.-W.N., W.N, E.N. and N.N. apply to

the Mid-Western, Western, Eastern and Northern Regions, and the States sub

sequently created from those areas

I. — THE RANGE OF SANCTIONS

1)

For an identical comment in relation to East Africa, see Read, Crime and

Punishment in East Africa

The Twilight of Customary Law, 10 Howard L.]

165 (1964)

(2)

For the controversy in Northern Nigeria as to whether probation was compa-

tible with Islam and whether it was otherwise suited to the local culture, see 4 H. Ass

Deb

col

1092 et seq

(N.N

The conflicts between approved school training and

parental responsibility under Islamic law are referred to by Brooke in his inquiry

report

Report of the Native Courts

(Northern Provinces) Commission of Inquiry,

para

3)

See e.g. Meek, Law and Authority

in a Nigerian Tribe,

337-338

(1933)

(of the Ibo) ; Gunn, Pagan Peoples of the Central Area of Northern Nigeria

100 (1956)

(of the Kagoro)

)

Criminal Code Proclamation, 1904, ss

17 and 18 (3)

It was abolished in 1932

(5)

Criminal Code Ordinance, 1916, s. 18 (14)

re-enacted in the Criminal Procedure

Ordinance,

1945, s. 3

(6)

Collective Pumshment Law (1963) Laws, cap. 24) (N.N.) ;

(1963 Laws, cap. 22)

(E.N.) ; (1959 Law, cap. 22

7

Criminal Code Proclamatlon

1904, ss

17 and 18 (4) (N.N.)

(8)

Criminal Procedure Code, s. 339 and Appendix C

9)

See the comments of one of the draftsmen

Richardson, Notes on the Penal

Code Law, 1959, 2nd ed., 37, n

1 (1963

— 278 —

10) E.g. see the account of the Western Ibo by Okonjo in Lloyd, Mabogunje and

Awe, eds., The City of Ibadan, chap. 7

9

.

(11) One need only look, for example, at the Sabon Gari communities in Northern

towns and, conversely, the Hausa communities in the South and in southern Ghana.

See, e.g. Cohen, Custom and Politics in Urban Africa (1969)—Hausa Community of Sabo,

Ibadan ; Winder, Lebanese in W. Africa, 4 Comparative Studies in Society and History,

296 (1962), Compare Parkin, Neighbours and Nationals in an African City Ward (1969)

—Kenya migrants to Kampala, Uganda.

(12) See my Sentencing Patterns in Nigeria, in Milner, ed., African Penal Systems,

261 (1969).

(13)

See Lambo, Neuropsychiatric Observations in the Western Region of Nigeria,

1956 (ii) B.M.]. 1388 ; Patterns of Psychiatric Care in Developing African Countries,

in Kiev, ed., Magic, Faith and Healing, 447-451 (1964) ; Milner and Asuni, Psychiatry and

the Criminal Offender

in Africa in

rican Penal Systems,

319, and the sources

collected there.

(14)

Political Memoranda 1913-1918, Memo VIII, para. 54; Memo. III, para. 23.

(15)

The classic analyses are by Gluckman,

The Judicial Process among the

Barotse of Northern Rhodesia, 20-21 (1955) and The Ideas in_Barotse Jurisprudence,

esp. chap. 1 (1965). For Nigeria, see my Sanctions of Customary Criminal Law, 1 Nig. L.J.

173 (1965) and the sources collected in footnote 34 of that paper.

(16) Report of Native Courts Commissions of Inquiry, 1947-1952, Appendix and

Summary of Recommandations, 105-106 (1953).

(17) See Compensation for Victims of Crimes of Violence, Cmnd. 2323 (1964).

.

18

R. v. Peel (1943), 59 T.L.R. at 274

i

with approval in Mehar Singh v. R. (1951), 6 U.L.R. 265 (Ug.

169 L.T. at 49, 'per Humphreys, J., quoted

(19) See footnote 18 above.

(20) E.g. Criminal Procedure Code (Laws of Zambia, cap. 7), s

164 ; Criminal

Procedure Code (Laws o

anganyika, cap.

’

3

i

Criminal Procedure Code

(Laws of Kenya, cap. 75), s. 175; Criminal Procedure and Evidence Code (Laws of

Malawi, cap.

:01), s. 145.

(21)

Criminal Code (1923 Laws, c

Code (Amendment) Ordinance, 1945, s. 3

af). 21), s. 18 (13), repealed by the Criminal

(22)

Native Courts Ordinance, 1933, s. 17,

(23)

Customary Courts (No. 2) Edict, 1966, s. 30 (E.N.).

(24)

Customary Courts Law (1959 Laws, cap. 31), s. 36 (W.N.).

R. v. Tadeo,

1923-60 A.L.R. Mal., 837 (Mal.) ; Hawala v. Sawasawa,

1964-66 ALK

Mal.,

168 (Mal.).

The anomaly is avoided elsewhere by specifying

«material loss or personal injury»

see e.g. Criminal Procedure Code (Laws of Zambia,

cap. 7), s. 162 A; Criminal Procedure Code (Laws of Tanganyika, cap. 20), s. 176)—

though this formula will itself exclude compensation for loss of reputation,

social

ostracism, etc.; see R. v. Balenje (1945), 4 N.R.L.R. 1 (N. Rhod.).

s

3

04SZG) The adultery provision is s. 150 A; the general compensation provision is

(27) Tanzania v. Anael, 1967, E.A. 378 (Tan.).

(28)

The husband of a married woman and the father of an unmarried woman

are given special status in respect of prosecutions for unlawful sexual intercourse by

being specilied as necessary complainants

(Criminal Procedure Code, s

142)

and

allowed to compound the offence (ibid. s. 338 and Appendix C).

This tends to support

the argument that they should be regarded as persons «injured».

(29)

The original marginal note—«Power of court to pay expenses or compen-

sation out of finen—was patently wrong and was changed in 1964 to read «in addition

to a fine» (Criminal Procedure Code Amendment No. 2) Law, 1964, s. 7). The original

was accurate in the parent provisions in Pakistan and the Sudan, where compensation

was never allowed in addition to a fine

see

ueen-Emp. v. Yamana Rao (1900),

LL.R. 24 Mad. 3

S Bom. L.R.

fJS; Emp. v. Rajubhai (1903), 5 Bom. L.R. 126 ; Emp. v. Bhujanga (1903),

(30)

There seems to be no requirement, as in indictable offences in England, that

the person

aggrieved must actually apply for compensation

v

Taylor, 1969, 2 All

.R. 662; R. v. Forest ].]., ex p. Coppin, 1969, 2 All E.R. A

(31)

In re Bastoo Dumaji (1896), I.L.R. 22 Bom. 717.

(32)

See e.g. Mehar Singh v. R.

footnote 18 above (Ug.), in which the court

held that the figure of Shs. 1000/—

ied as the maximum in all compensation cases

under the Criminal Procedure Code.

o

maximum was stated when the basic compen-

sation provision was introduced in 1930. A ceiling of Shs. 500/— was imposed in 1935

and the limit increased to Shs. 1000/— in 1

(33)

Case No. Z/41C.A./67, May 11th, 1968, unreported.

- 279 —

(34) Ahamed Mahamoud v. R., 1959, E.A. 1087 (Kenya)

(35) R. v. Kaserikali bin Isabosi (151), 1 T.L.R. (R.) 100 (Tan.).

(36)

Ahamed Mahamoud v. R.,

footnote 34 above where a sum had already

A court has,

been paid by the accused’s tribal section to

that of the complainant.

however, no power to recommend that a com

pensation payment be made outside the

statutory structure

see Republic v. Kondowe,

1964, E.A. 185 (Tam.).

(37) R. v. Mohamed (1953), 2 TL.R. (R.) 1 (Tam.) ; Sharma v. R. (1953), 20 E.A.C.A.

310 (Kenya).

This

is

the unsatisfactory position creat

ed by

the Tanzanian Minimum

Sentences Act, 1963, s. 6 (1)

see Mwakapesile v. Repu

blic, 1965, E.A. 407 (Tan.).

v. R., footnote 18

i39) The recom

mended procedure is described in Mehar Singh

Salim bin Rashid

above, at 268.

ee also R. v.

Godinho (1950), 17 E.A.C.A. 132 (Ug.) ;

v. Evaristo,

1923-60

.L.R. Mal. 674;

1958

v

1930), 1 T.L.R. (R.) 169 (Tan.); R

R. and N. 929 (Ny.).

(40) See e.g. Criminal Procedure Code (Laws of

Tanganyika, cap.

20), s

134 ;

Criminal Procedure Code (Laws of Kenya, cap. 75), s

176 ; Criminal Procedure and

Evidence Code (Laws of Malawi, cap. 8:01), s. 16

(41) See also Customary Courts Law (1959 Laws, cap. 31), s. 26 (W.N.).

See m

)

'y Sentencing Patterns in Nigeria, in African Penal Systems, esp

Table 11.1, p.

(43)

(1893), I.L.R. 21 Cal. at 112.

(44)

Ibid., at 114-115, per Travelyan, ].

(45) By s. 339 (2) the abetment of or attempt to commit a compoundable offence

is equally compoundable.

(46)

Kanni Rowther v. Inayathulla Sahib,” A.LR. 1916 Mad. 854.

(47)

John v. King-Emp., A.LR. 1923 All. 474.

Kanni Rowther v. Inayathulla Sahib, footnote 46 above; Sat Narain v. R.,

a1R. 1950

All 86.

(49)

Thiruvangadchariar v. Chockalingam, A.LR. 1924 Mad. 31.

(50) Sayamma v. Punamchand, A.L.R. 1933 Bom. 413.

II. — THE STRUCTURE OF SENTENCING

(51)

Constitution of the Federation, 1963, s. 22 (10).

(52)

Criminal Procedure Act, ss. 389-390 ; Penal Code, ss. 73-74 ; Criminal Proce-

dure Code, s.

(53)

Criminal Procedure Act, s. 382; Criminal Procedure Code, s. 23.

(54)

In lieu of or in addition to other measures

Criminal Code, s. 18 ; Criminal

Procedure Act, s. 387, Penal Code, s

(55)

Criminal Procedure Code, s. 435; Probation of Offenders Law (1963 Laws,

cap. 101), s. 8 (N.N.).

(56) Criminal Procedure Code, s

436 ; Probation of Offenders Law (1963 Laws,

cap. 101), s. 5 (N.N.).

(57) Muktar Yerima Mustafa v. Bornu N.A., High Court of N. States,

Case

No.

].D./38 C.A./67, unreported ; Sudan Govt.

v. Gason El Seed Moh. Salih (1966),

S.LJ.R. 98. The suggestion by the High Court of the Northern States in Agbegende

v. llorin N.A., 1

N.M.L.R. 144, that a court might still order an absolute or conditional

discharge under such a provision is surely wrong.

(58)

E.g. Indicn Hemp Decree, 1966, s. 2; Suppression of Disorder Decree, 1966,

s

1; Public Security Decree, 1967, s.

(59)

Children and Young Persons Act

(1958 Laws,

cap. 32),

S

11 (Lagos) ;

Children eand Young Persons Law, cap. 20), s. 11 (W.N.) (1963 Laws, cap. 1

, 8.1 (EN.

i

.

(1963 Laws, cap. 21), s

11 (N.N.) ; Penal Code, s

69—not under 14 years, or under

17 years unles he cannot be suitably dealt with in cnother way.

(60)

Criminal Procedure Act,

88.

385 ;

Criminal Procedure Code,

8

308. Both

Codes Provide that no person 45 years of age or over shall suffer this penalty (17 years

in the Eastern States) and that it may not be inflicted upon a woman at 3

The Cri-

minal Procedure Code adds that it may not be inflicted upon a person under sentence

of death.

(61)

The use of this expression in Agbegende v. Ilorin N.A., footnote 57 above,

in relation to a situation in which a court can exercise sentencin

discretion, however

restricted, is misleading. Nor is it particularly helpful to speak o

provisions as being

«mandatory for punishment».

— 280 —

(62)

See footnote 58 above.

E.g. Investigation of Assets (Public Officers and Other Persons) Decree, 1968,

ss. 2 ((?1:;)

and 3

.

(64)

1966,

K

4—maximum fine for second or subsequent

E.g. Curfew Decree,

offence ; Newspapers (Prohibition of Circulation) Decree, (1967, s. 2—double the maximum

for first offence on conviction for second or subsequent.

E.g. Robbery (Summary Trial and Punishment) Edict, 1967, s. 3 (1) (W.N.);

Bobbegs )(s

pecial Provisions) Edict, 1968, s. 3 (1)

gos).

(66)

Thirty minimum sentence provisions

‘were

introduced by

the North-East

State's Penal Code Law (Amendment) Edict,

1968, and 12 by similar legislation

in

Kwara State in 1969.

)

See Mannheim, Some Aspects of Judicial Sentencing Policy,

67 Yale L.J.

961 (1958).

(68) Witness the problem of 19th and 20th centu

English juries acquitting rather

than fining offenders guilty of crimes carryin

a mandato:

death penalty

Report of

the Royal Commission on Capital Punishment, Cmnd. 9832, para. 27-29 (1953).

(69)

Ishola v. State, Court of Appeal, Western State,

Case No. C.A.W/25/67,

May 1st, 1968, is classic case of avoiding a heavey mandatory penalty for the possession

or cultivation of Indian hemp. The court refused to uphold the conviction ; it said that

even though the accused admitted cultivating hemp there should be (a) scientific analysis

confirming that

e plant was Indian hemp, and (b) evidence of the total, 24 hour a day,

security of the samples taken for analysis.

In the absence of either element the court

would not uphold the conviction.

(70)

the Administration of Criminal Justice, 23 Law and Contemp. Problems, at 506 (1958).

Cf. Ohlin and Remington, Sentencing structure : Its Effect upon Systems for

III. — THE JUDICIAL SENTENCING PROCESS

71

Hood, Sentencing

in Magistrates’ Courts

(1962) ;

Glueck, The Sentencing

Problem, 20 Federal Probation 15 (1960), and studies cited there.

2)

See esp. Green, Judicial Attitudes in Sentencing, chap. 1 (1961), and studies

cited there.

(73)

Throughout this period outbreaks of rioting, malicious damage and assault

in Benue Province were dealt with by the Makurdi court

(74)

See Sentencing Patterns in Nigeria, in African Penal Systems, 267-268.

(73)

See e.g. Hall Williams, American Blueprints for Probation, Parole and Correc-

tional Administration, 8 Brit,

J. Del.

188 (1958).

See also Walker,

Sentencing

in a

Rational Society, 159-165 (1969)

(76)

Sutherland and Cressey, Principles of Criminology, 6th ed., 300-301 (1960).

Report of the Inter-Departmental Committee on the Business of the Criminal

Courts,77C

mnd. 1289, para. 302 (1961) (The Streatfeild Committee).

(78)

Prisons Act,

1960,

k]

11 (2) makes ex-officio prison visitors of all judges,

magistrates and presiding officers of other courts.

There is little evidence that the right

of visiting is exercised.

(79) Circular to Magistrates, No. 20 of 1940, 19 (2) K.L.R. 113.

(

Sentencin

g seminars are required to be held by statute for Federal judges

(28 U.S. Code, s

334 (1958) to develop the «formulation o

sentencing principles an

criteria which will assist in promoting the equitable administration of the criminal lawsn...

Impressions of American and Canadian seminars are collected and discussed in Parker,

Education of the Sentencing Judge, 14 1.C.L.Q. 206 (1965).

(81)

Mannheim, Some Aspects of Judicial Sentencing Policy, 67 Yale L.J. 961 (1958) ;

Thomas,

Sentencing—The case for Reasoned Decisions,

1963,

rim.

i

al

Williams, Sentencing in Transition, op. cit., footnote 55 above, at 34-36 ; Cross, Paradoxes

in Prison Sentences, 81 L.Q.R. at 212 and seq. (1965).

(82)

Reifen, Implications of Laws and Procedure in the Juvenile Court in Israel,

3 Brit. J. Criminol. at 139 (1962).

(83) Inspector General of Police v. Akano (1957); W.R.N.L.R. 103

(84)

See Parker, Education of the Sentencing Judge, 14 1.C.L.Q. 206 (1965).

As in, for example, Guides for Sentencing, a publication of the American

chtioncxl5

Probation and Parole

Association, and the American Law Institute’s Model

Penal Code.

(86)

The long list of studies by the Gluecks are listed in Professor Glueck's short

Paper Pr

edictive Devices and the Individualisation of Justice, 23 Law and Contemp.

Problemsg

461 (1958).

L BRAE e

(87)

Esp. Prediction Methods in Relation to Borstal Training (1955).

(88)

Op.. cit., footnote 86 above, at 475.

(89)

Contrast the revealing statistical and other documentation of the problems

of long prison sentences by Jeremy Hutchinson, Q.C. in the English «Great Train Robbery»

case (R, v. Wilson,

The Times, July 7th,

1964),

and in on earlier espionage case

(R. v. Blake, The Times, June 20th, 1961).

(90)

See The Times, June 25th, 1963.

(91)

See the symposium on Assessing the Offender for the Courts,

1 Brit.

J

Criminol., esp. Raeburn, at 102, and Scott, at 116 (1960).

(92)

For the discussion of the contents of social inquiries re

rts, see the Report

of the Interdepartmental Committee on the Business of the Criminal Courts, Cmnd. 1289

esp. para. 336 and seq. Report of the Departmental Committee on the Probation Service,

Cmnd. 1650, chap. 3 (1962) ; Jarvis, Inquiry Before Sentence, in Grygier, ed., Criminology

in Transition, 43 (1965). The process of inquiry is superficially described in an African

context by Clifford, Primer of Social Case Work in Africa, chap. 4 (1966).

— 282 —

Hon-Inslitutional Care of Offenders in Practice :

The Danish Experience

by Karl O. CHRISTIANSEN

University of Copenhagen

Professor of Criminology. Former Chairman of the Scandinavian

Research Council for Criminology

In this paper | shall concentrate on some of the problems and the prac-

tical results of the most important types of non-institutional treatment of offen-

ders in Denmark.

The main part of my report is centered around the results

of a few investigations and an experiment on the effectiveness of these mea-

However, as an

sures applied on the Danish legal and social background.

introduction, | shall give a brief survey of the appropriate part of the Danish

legal system and some, mainly demographic and criminal statistical, data about

Denmark

THE LEGAL SYSTEM

In Denmark non-institutional treatment exists in different forms of which

the most important are

1)

Child Welfare Treatment of “offenders” under 15 years of age which

is the lower age of criminal responsibility.

2)

Child Welfare Measures against young offenders between 15 and 17

In certain cases

years (incl.) of age where the charge being withdrawn.

similar measures of care may be applied to young adults between 18 and

20 years incl.

3)

Suspensed Sentences (often called conditional sentence) and Probation

in various forms

a)

the suspensed sentence as a suspension of the execution of the

penalty, i.e., the offender is convicted, and a penalty is measured out,

but the sentence is not executed ;

b)

suspensed sentence in the Anglo-Saxon form where no sentence is

measured out, i.e. probation in the narrow sense of the word ;

<)

the so-called “combination sentence”, a combined sentence, where

part of the sanction is measured out in a penalty including an un-

— 283 —

conditional deprivation of liberty, not exceeding three months plus

one of the forms of suspensed sentence.

For all three types the fundamental condition is a crimefree period

of normally three years length (the probation period), but other condi-

tions may be imposed, in many cases in the form of supervision (proba-

tion in the narrow sense of the word).

4)

Parole as an after-treatment of offenders released from an

institution.

It might of course be discussed whether this measure should at all be

mentioned here, but certain Danish research results indicate that there

exist some important problems concerning both parole and probation

which are of a common nature.

5)

Fines which in Denmark mainly are applied for specific offences, first

of all public drunkenness, shall not be dealt with here.

However, it

should be mentioned that fines relatively often are used as a supplemen-

(19

com

tary penalty to other forms of punishment, among others in the

bined sentence”.

For further details see Appendix I.

For information on the supervision and probation practice, | beg to refer

to Appendix Il.

A NOTE ABOUT DENMARK

May | now relate a few facts about Denmark.

Denmark is—I| am sure

you know it—a small country.

The total population is 4,738 mill.

In Greater Copenhagen live 1,4 mill. people.

In other towns live 1.3 mill. people.

And in rural districts 2.0 mill. people.

This means that 2.7 millions people, close to 60 per cent of the popula-

tion, live in towns.

Denmark has what | dare to call a fairly good—but not completely

sufficient—social welfare system.

It comprises among others maternity aid,

home help service, relief to orphans, child welfare and sickness insurance,

pension for disabled persons and aid to people suffering from chronic diseases.

We have different forms of poor relief, unemployment insurance, old age pen-

sion, relief to widows and widowers—and even at the end subsidies to fu-

neral expenses.

CRIME IN DENMARK

Let us continue by considering a few from the official Danish Criminal

Statistics.

i DX

In 1967—the latest year for which statistical data are available—the

number of offences against the penal code, reported or otherwise brought

to the knowledge of the police, was about 171,000.

They were distributed

as follows : Sexual offences 3,300, crimes of violence 3,200, offences against

property—by far the largest group—163,000, and a small group consisting

of 1,600 'other offences’.

In relation to population figures the total number of offences announced

was about 350 per 100,000 inhabitants, 7 for each of the two groups under

the headings sexual offences and crimes of violence, and 337 for property

offences.

It may be appropriate to draw the atiention to the fact that the

numbers of crimes of violence and sexual offences are extremely low.

The

trend has since 1960 been upward.

Of the 171,000 offences known to the police in 1967 were on the ave-

rage 32 %, i.e. 51,000 solved.

However, the percentages vary from 90

for crimes of violence and 76 for sexual offences to 30 for property offences.

In 1967 the number of decisions concerning persons found guilty, na-

mely cases where the charge was withdrawn or the accused was convicted,

amounted to somewhat more than 12,000 for men, and

1350 for women.

Of these decisions or sanction a little more than 300 concerning men, and

ca. 560 concerning women were cases where the charge was withdrawn.

Fines were applied in 2100 males and a little more than 100 female cases.

More serious sanctions were applied in about 7000 male and 670 female

cases.

As mentioned these numbers count decisions, and when evaluating

them it should be taken into consideration that the same person may be found

guilty more than once during a year.

According to estimates of the Institute

of Criminal Science of the Copenhagen University the number of persons

found guilty is about 10 9, less than the number of decisions.

The more serious sanctions comprehend ’sentence served on remand’,

'bound over' where no sentence is fixed, 'lenient imprisonment’ (suspended and

not-suspended), 'ordinary imprisonment’ (Suspended and not-supended), 'spe-

cial imprisonment’ (for psychopaths), 'youth prison’ (1-3 years), 'work house’

many of them being habitual drinkers or alcoholics), 'preventive detention’

(4-20 years for dangerous criminals) and ‘preventive measures’ including

among others the completely indetermined detention for psychopaths, mental

hospital and asylum for feebleminded.

Of the 7,100 sanctions applied in male cases ca. 1,300 were probation

cases, and ca. 1,300 suspended sentences of various kind.

However, of the

670 sanctions in female cases 320 were probation cases and 220 suspended

sentence.—This means that of the male prison sentence, etc. 36 % were

probation or suspended sentences, while the same figure for females were

81

Yo

On the other hand, of all the 12,000 male sanctions only 38 9,

Were unconditional prison sentences or other kinds of deprivations of liberty,

and of the 1350 female sanctions the corresponding percentage was even

smaller, only a little over 9.

=LayR5) o

HOW TO EVALUATE SUCH DATA ?

Is this result satisfactory ?

That only 9 % of female cases found guilty

of offences against the criminal code can hardly be critisized if one adherse

to treating of offenders in freedom as | do, but what should be said about

using some kind of deprivation of liberty in 38 9, of similar cases concer-

ning males ?

It is impossible to make a fair appreciation of what this could

mean without taking other facts into consideration.

First of all, the content of probation and suspended sentence and the

length of the deprivations of liberty and the treatment in the different insti-

tutions play a role.

A step towards the solution of these questions may be

taken through comparisions with the criminal political practice of other coun-

tries, but only partly.

Secondly, the cultural and social background may in

some cases lead to a good and from an economic point of view, reasonable

solution of the crime problem, while in another country with a different back-

ground, the same solution would be unacceptable because of less favourable

results in terms of recidivism or because the expenses would exceed what the

country consider that it can afford to spend in the struggle against crime.

Leaving the financial aspects apart for a time | should, as point three,

like to draw the attention to one other aspect of the appreciation of the value

of non-institutional treatment of offenders.

It is again the question of results

measured in terms of resocialization of probationers and offenders for whom

the sentence was suspended.

It is the question of success and failure or in

a more narrow sense the question of the rates of recidivism.

Is 80 % reci-

suffice ?

divists too many ?

will 50 <,

Or should 30 %, be considered

the maximum of what could be

accepted ?—This is a complicated problem,

which only in rare cases can be

solved.

However, | shall try to illustrate the

difficulties and point to possible

ways to overcome them.

A DANISH INVESTIGATION

It does not tell you much that according to a Danish investigation, by

Greve, the percentage of recidivists among male offenders under supervision

is in the course of a 5-6 year follow-up period 49, and the corresponding

figure for women 34.

Here recidivists are defined widely taking into conside-

ration also cases where the (new) charge is withdrawn or fines.

If we con-

fine the concept of recidivism to new offences which lead to non-suspended

sentences, including Youth Prison, work-house, detention for psychopaths, etc.,

the number will be reduced to 33 9%, and may be you then feel you know a

little more.

You know even more if we add that the 49 9, recidivists in

the wide sense is distributed with 23 %, who only got one later sentence,

12 %, two sentences and 14 9, three or more.

— 286 —

A couple of other factors of recidivism must also be considered.

Pre-

viously unpunished probationers only count 36 %, recidivists ; persons with

one to three previous punishments 51

% ; and persons with four or more

63 %.

This means that from about one third to about two thirds fall back

in new offences, depending alone on their previous criminal career.

It is well known

Age is an even more important factor of recidivism.

that the rate of recidivism decreases with growing age, the only thing which

could be discussed being the question of the exact age where the decrease

However, in this investigation we have as far as the age at the

begins.

suspended sentence is concerned only data of recidivism for the three age

groups

'below 21’ years of age, '21-29" and 'higher than 29 years of age’.

In the other mentioned the percentages of success are 44, 53 and 60 respec-

tively.

If we consider age at first offence, we found correspondingly in the

age groups 'below 18 years of age’, '18-20" and 'above 20 years of age’

35 °,, 47 .% and 61 9, respectively.—Here again we find that recidivism

increases from one to two thirds, depending upon age at first offence.

If we combine 'age at first registration of an offence’ and 'previous cri-

minal/career’ we shall find that among previously registered persons who both

were 'below 21 years of age' when they got the suspended sentence, and

'below 18' when they were first registered, 79 % will fall back in new offences

within a follow-up period of 5-6 years.

On the other hand, previously non-

registered persons above 30 years of age have a rate of recidivism of only

14 %.

Offenders who have committed property offences recidivated in about

45 o/, of the cases, sexual offenders in 35 %, and violent offenders 27 %.

These differences are reduced when the offence groups are broken down by

age of the offender.

As an exception to this rule could be mentioned sexual

offenders over 29 years of age, among whom only 12 9, have recidivated.

SOME GENERAL CONSIDERATIONS

That much may suffice to demontrate that the average figure of recidi-

vism of 46 %, cover a widely spread variation between 12 and 79 %.

To

illustrate how little such isolated numbers and frequencies tell us, | shall quote

a few percentages of recidivism within other groups of offenders.

28 —

TABLE |

Rates of Recidivism

in a Five-Six Years Observation Period for Male

Inmates from Various Danish Prisons, etc.

—

—

—

—

—

———e——a

A RECIDI\;IS{?;S ,

e

S

—

RELEASED

ABs. FIG.

%

State Prison, Horserdd

101

24

23,8

—

Kaershovedgard

17

23,5

Kragskovhede

318

165

51,9

::

Nyborg

323

190

58,8

Nr

Snede

126

69

54,3

Renbaek

100

42

42

Vridsloselille

225

100

44,4

Sdr

Omme

14,2

State Prison,

Tarm

D R OO T D)

67

10

14,9

|

—

Youth Prison, Kaershovedgard

28

20

71,4

96

76

79,2

Mdgelkaer

Nyborg

27

24

88,9

70

49

70

Sobysogard

‘Work House, Sdr. Omme

84

53

63,1

=

Detention for Psychopaths

Herstedvester

88

45

51,1

Horsens

8l

65

71,4

Special Imprisonment for Psychopaths,

orsens

133

89,9

148

50

S

e e

s

=

It is evident that without knowing something about the age distributions

of these various groups of offenders who have all served some kind of sen-

tence or have been institutionalized because of offences against the criminal

code, and without knowing something about their previous criminal careers,

about the type of offences they have committed, and about a number of other

factors influencing the probability of recidivism—these percentages tell you

absolutely nothing.

MEASURING EFFECTIVENESS

Up to now only a few ways exist if we want to measure the effective-

ness of punishments.

One is to sub-divide the two groups of offenders we want to compare

into categories defined by relevant factors of recidivism.

Age, criminal career,

and type of offence are three of them, but geographical distribution, upbrin-

— 288 —

One of the

ging, education, employment, income, family life, etc. are others.

difficulties is that almost as many subgroups as persons in the sample will

be necessary, and if you split your sample info atoms no statistical treatment

is possible.

Another difficulty is that the distribution in each of the two offen-

der groups may be skew, but in opposite directions, so that for instance you

may find empty or almost empty classes in the opposite ends of the scale of

the groups you want to compare.

Another method is described in Mannheim and Wilkin's book on “Predic-

tion in Relation to Borstal Training” (1955) where they compare the results

of treatment in open and closed institutions.

Apparently the open institutions

do a better job than the closed, because they show a lower rate of recidivism,

42 °, as against 62 %

However, this conclusion is not justified by the

difference in percentages.

For it is of course more than probable that the closed

institutions will get the most difficult boys while boys in the low risk categories

will be placed in the open institutions.

In fact this is the case, but if the boys

from the two types of institutions are divided into the same risk categories, with

a high risk, a middle risk, and a low risk of recidivism, it appears that the

results from the open institutions are still the best as it appears from table 2.

TABLE 2

Percentage of Success within Three Risk Categories in Open and Closed

Institutions (Mannheim and Wilkins)

—

RIéK VCATEGORY

OPEN INSTITUTIONS

CLOSEﬁ INST;IT[iTiONS

AB good

78

67

X middle

61

57

|

CD bad

38

28

Consequently the conclusion that treatment in open institutions give better

results than treatment in closed holds true.

'Whether it is a result of “better

work” or—more probably—of other characteristics within the milieu of the

open as against the closed institutions is another matter.

The statistical method used in computing the individual probability of

recidivism (e.g. discrimination analysis) is, however, a complicated and time

consuming one, which require not only an able statistician but also access to

an electronic computer.

Expressed in one word : it requires money.

A third method is to make experiments.

If the two types of sanction (or

treatment) which should be compared are represented by two randomly selec-

ted samples of offenders the results may be compared after the end of a

certain period of observation.

A court might for instance use probation in

cases with even numbers and unsuspended sentences when the number is old.

In two or three years the incidence of recidivism or other indices of success or

280 —

10

failure in two groups will tell whether and how much the results differ.

—The

main obstacles will probably be that it might prove impossible to find a court

whose members are willing to accept this form of experimentation which—in

spite of the purpose—may seem unjust to them.

—It is more probable that

experimentation will be feasible if it is performed after the sentence has been

fixed.

| hope you will forgive me for having used so many words to explain the

difficulties inherent in the evaluation of the results of different types of reaction

against offenders.

Let it serve as an excuse of the scarcity of facts regarding

the Danish results in this field.

If, however, you will allow me to cross the

border to Sweden, | should like to draw your attention to a study by Borjeson

(1966).

A SWEDISH INVESTIGATION

Borjeson has developed an instrument of prediction by comparing samples

of recidivists and non-recidivists selected among juvenile offenders in Gothens-

burg.

He studied 76 supposed factors of recidivism of which 39 proved

relevant.

They occurred among data concerning the family, the home milieu,

intelligence, vocational training and job, adjustability, drinking habits and

previous criminal career.

By a multiple correlation analysis of specific point-

value was attached to each relevant factor.

On this basis the number of risk

points was computed for each of the offenders, and nine risk-groups were

established, 1 showing the lowest risk and @ the highest.

The next step is to compare the rate of recidivism for various types of

sanction.

One of his results is of special interest to us.

li

is shown

in

table 3.

TABLE 3

Rates of recidivism among 421 young men according to risk group and

institutional or non-institutional treatment (Borjeson) :

=

==

=

=

RISK GROUPS AND PERCENTAGES

-

OF RECIDKYISM

i

Institutional treatment

21

27

38

40

62

77

93

100

100

Non-institutional

treat-

|

men

11

11

38

60

80

87

Difference (1 :i- 2)7

21

16

e

31

29

24

17

13

13

The figures show that the risk groups are well-defined, for the percentages

of recidivism vary continuously from group 1 with the lowest percentages to

group 9 with the highest.

But the most interesting fact is that in all of the

— 290

risk groups recidivism is markedly higher for institutional than for non-institu-

tional treatment.

It ought to be added that Borjeson's work has been critizised, but | think

the criticism has mainly concentrated on certain aspects of the documentation,

a point where | agree with several of the reviewers.

Whether Borjeson has

succeeded in proving that non-institutional treatment is in fact better than

institutional, it should be underlined that nobody has demonstrated the oppo-

site.

A DANISH EXPERIMENT

The other piece of evidence which seems to demonstrate the advantages

of non-institutional

treatment of offenders

is Danish.

It is often maintained

that short term sentences are intrusially and evil.

In fact, the introduction of

conditional sentences and probation were often supported by the argument

that these measures would do away with the short interments.

| shall not main-

tain that this argument is false, but | am pretty sure that short sentences under

certain conditions can be a relevant mean in the treatment of offenders provi-

ded that it is utilized as the first step in the process of resocialization.

In cooperation with the Danish psychologist, Karen Berntsen, | have in

1952-53 for the Permanent Crime Commission carried out an experiment with

short-term prisoners in the prisons of Copenhagen.

The number of short term

sentences of six months of imprisonment or less equal the number of conditional

sentences and probation cases, i.e. in 1953 a little more than 30 %, of the

male sanctions excluding with drawals of charges.

(In parentatis

prison

sentences exceeding six months are only measured out in 16 9, of the cases).

Our experiment was based on two randomly selected samples of prisoners

of which one group was made subject of a relatively intensive socio-psycho-

logical treatment while the other served as a control group.

The short-term

prisoners generally serve their sentence in separate cells and there is rarely

any possibility of providing adequate work during the prison time or adequate

social assistance after their release.

A thorough socio-psychological investigation disclosed that the prisoners

in our sample formed a very heterogenous group with only é 9, first offenders

and 32 9%, who had served at least 5 sentences.

Comparatively few of them

were young people embarking on a career of crime.

Far more were older

persons, who—by mischange—had received one or several short terms of

imprisonment in between longer sentences to imprisonment or detention.

In

some criminal careers short-term sentences predominated ; these included al-

coholics who had been sentenced for petty offences only (petty theft, receiving,

etc.).

Finally, there was a group of older prisoners whose criminality was on

the wane after lengthy periods of internment in prisons or workhouses ; the

decline of their criminal careers manifested by fairly long crime-free periods

interspersed with short-term sentences when things went wrong.

— 291

-

Over half the prisoners investigated grew up in bad homes, and about

two-thirds of them received an upbringing which may be described as clearly

inadequate or unfavourable.

Slightly over one-third of the persons investigated had experienced serious

adjustment difficulties at school.

A similar proportion had been under the

care of the Child Welfare Avuthorities, and of these, two-third had been remo-

ved from their homes and placed in institutions.

Over half of the prisoners had experienced serious adjustment difficulties

in their work, and about half of those who had been married were later sepa-

rated or divorced.

On the other hand, the intelligence rating of the prisoners differed little

from that of the average population.

The main data included only three cases

of mentally retarded persons (intellingence quotients between 75 and 90).

About 44 9/, however, displayed a considerable degree of mental aberration.

Most of these were suffering from character insufficiency (psychopaths) or

neuroses, a smaller number were pathologically inmature, and a few were suf-

fering from dementia.

At the time of the offence 49 prisoners were under the influence of

drink, and in 38 of these cases this factor was very probably a contributory

cause of the offence.

The material also included 6 alcohol addicts, and 57

prisoners who were habitual symptomatic excessive drinkers.

These two groups

together comprise half the cases investigated.

In this sample, alcohol is the

crime factor that is most forcefully and clearly apparent.

In slightly more than half the cases there were clear signs of a social

breakdown accompanied by occupational instability, short periods of employ-

ment, long periods on public relief, frequent resorting to vagrancy, and, in

many cases, abuse of alcohol in conjunction with petty offences.

These factors characterize both the experimental group (C-group) without

any noticeable difference among the two groups.

According to the influence

of three fundamental factors of recidivism the excepted rate of recidivism is

on the same level in both groups, in fact higher in the E-group (51

%)

than in the C-group (49 %).

The resocialization efforts may very briefly be described as follows

The actual treatment began at an earlier stage of the prison sentence.

The

social work consisted in finding work (54 cases), a difficult and time-consuming

task during the winter of 1952-53 with a high rate of unemployment, in fin-

ding accomodation (24 cases), clothing (30 cases) and in helping the prisoners

with problems concerning their membership in trade union and health insurance

(47 cases).

Sometimes very modest financial help was given on the prisoner's

release (31 cases, and sometimes it was necessary to help the prisoners in

negotiations with tax authorities (15), with Public Assistance offices (22) and

other public authorities and institutions as well as private creditors (60).

Often

assistance was needed to straighten out difficulties with wives or husbands, pa-

) 2

rents or other relatives (59).

Twelve prisoners began anti-alcoholic treatment

during or after their imprisonment ; in six of these cases, this was a condition

of their pardon.

Through talks with particularly unbalanced prisoners the

psychologist tried to cure depressions and to ward off conflicts.

The majority of the prisoners were released after having served their

sentences, but fifteen had their sentence commuted after having served half

time.

Most of these persons were placed under supervision for one to two

years.

The investigators strove to create such a relationship of trust between

themselves and the prisoners during their imprisonment and to arouse in them

so sincere a desire to leave off their life of crime that a form of voluntary

supervision could be established.

Since their release, about half the prisoners

have contacted the investigators

The treatment and welfare work made great demands on the members

of the project.

But the work did not by any means reach the extent or

achieve the intensity which was necessary to ensure the entire success of the

experiment.

During the study the members of the team made a critical evaluation

of the short-term imprisonment.

Their results may very roughly be given as

follows

1)

Cases where a suspended sentence without supervision

is considered to be the most appropriate reaction

16

persons

2)

Cases where a suspended sentence coupled with psy-

chological

or

socio-psychological

welfare activities

(probation) is considered appropriate

38

persons

3)

Cases where an out-patient anti-alcoholic treatment is

deemed sufficient

15

persons

4)

Cases which seem to require an active anti-alcoholic

treatment, preceded by institutional observation

persons

5)

Cases which seem to require a thorough psycho-the-

persons

rapeutic treatment

9)

Cases which seem to require institutional treatment in

a special institution which for the time being does

not exist

o e b 8 1a W 8648 686 e e e b6 b e e b 8 S sfe s e

19

persons

7)

Cases where commitment to an institution for psycho-

paths is deemed to be the most appropriate reaction.

persons

8)

Cases where withdrawal of charge or the imposition

of a fine will appear most appropriate

Ol g e I

persons

9)

Cases where a short-term imprisonment in itself is con-

sidered to be an adequate reaction to the offender

14 persons

In certain cases, then, a

short-term inprisonment without any further

treatment is an adequate reaction to less grave criminals.

This applies to

group 9, covering 14 prisoners.

—

293 —

In several cases, however, other forms of reaction will seem to be re-

quired or to be considerably more appropriate than short-term imprisonment.

This is true, first of all, of the groups 6 and 7, but also of the groups 1 and 8.

These four groups include 45 persons.

As regards.fhe remaining cases, the short-term imprisonment coupled

with a thorough socio-psychological investigation and systematic efforts of re-

socialization may be considered an appropriate reaction; in most of these

cases, however, other—sometimes more, sometimes less radical—forms of reac-

tion ought to come into consideration.

Group 2, 3, 4 and 5 cover a total

of 67 persons,

Let us now turn to the principal results of the experiment, the compa-

rison of the experimental and control groups.

Rates of recidivism during a

seven year observation period appear from table 4.

TABLE 4

Rate of recidivism in the experimental group and the control group (Bern-

tsen and Christiansen).

Poses o

EXPERI;VIEN’%%_LI GROUP

1|

=

e

:(?ENTROI; G%oubi

|

|

<

-

TIME

of

recidivism

PERSONS

under

observ

recidivism

gg

'%

RECIDIVISTS

PERCENTAGE

CUMULATIVE

PERCENTAGE

RECIDIVISTS

PERCENTAGE

CUMULATIVE

percentage

o

of recidivism

0-3

mths

e

126

3.2

3.2

126

7.2

7.2

4-6

mths

125

4.8

8.0

—

— O

125

8.8

16.0

|

7-9

mths

e

124

7.3

15.3

125

2.4

18.4

=

10-12

mths

124

4.0

19.3

—

125

8.8

27.2

13-18

mths

o

124

1.6

20.9

124

4.0

31.2

19-24

mths

123

4.1

25.0

‘

122

7.4

38.6

25-36

mths

. ;

122

5.7

30.7

122

7.4

46.0

37-48

mth

119

5.0

35.7

0w © o U —-

122

6.6

52.6

49-54

mths

e RN I, IR BT R

119

39.1

121

52.6

55-60

mths

119

39.1

—

121

0.8

53.4

61-72

mths

N

119

1.7

40.8

121

3.3

56.7

73-84

mths

X

107

0.9

41.7

|l

107

0.9

57.6

85

mths

52

69

T iy

The table shows that recidivism is about 16 9, higher in the control group

than in the experimental group. This difference is significant.

The conclusion

is that short-term prisoners who are examined and social-psychologically trea-

ted, paroled and offered help and treatment after release have a marked and

significantly lower rate of recidivism than other short-term prisoners.

This

general conclusion could be elaborated as follows

S (o /e

1)

There is a hard core of rapidity recidivating criminals on whom the form

of treatment used in the experiment seems to have no effect.

2)

The treatment has the greatest effect in an intermediate group whose pre-

vious career was relatively heavily crime-loaded.

This group may be

described as follows

under 40 years old, previously convicted, skilled

workers with a high expectancy rate of recidivism ; the chronic criminals

in this group seem to be more susceptible to treatment than the less

persistent criminals.

3)

The less crime-loaded categories, where the rate of recidivism was low,

seem to have profited very little or not at all from their participation

in the project.

CONCLUDING REMARKS

| am very well aware that what | hade said will perhaps be of little

direct use to you.

| want you to take into consideration, that the problems in

our countries are different, and that the solutions we need may be different

too

However, our approach and methods could be the same.

Within most

of the areas of criminal policy we have to base our practice on tradition, on

the method of trial and error, on good—and bad— guesses, on intuition and

not seldom on rational conclusions from false premises.

We cannot afford

and we have not time to experiment to create a solid background for every

decision we have to make.

But just regarding non-institutional treatment of offenders | think we are

rather safe, provided we can, if not prove, at any rate establish a presump-

tion that this sanction is not less effective than looking the offender up in an

institution.

For non-institutional treatment has a number of advantages.

The

offender remains in his own milieu which in most cases is good, and keep in

contact with his family.

He can as a rule hold his job and earn his wage.

Although he is formally labelled an offender he is not suffering in the same

way as a prisoner, nor is his family.

And for the state, measures like fines,

conditional sentences, probation and parole are cheap.

They cost only a

fraction of the price of incarceration.—Therefore sanctions without deprivation

of liberty should be generally recommended in cases where serious reasons

do not speak against it.

Furthermore, | expect it would turn out to be pro-

fitable if we could obtain some of the valuable elements from

institutional

and non-institutional treatment, not only as it is done in the Danish com-

bination sentence or in parole, but also by introducing in the field of proba-

tion various forms of therapy which require some kind of institutionalization.

— 808 —

APPENDIX |

THE LEGAL RULES CONCERNING NON-INSTITUTIONAL TREATMENT

OF OFFENDERS IN DENMARK

1

Children under 15 years of age

Acts committed by children under 15 years of age are not punishable and

consequently from a formal point of view not offences (The Danish Criminal

Code,

sect.

15).

Nevertheless

it occurs

in Denmark as

elsewhere

that

children perform acts defined as offences in the criminal

code.

This

IS

probably the case with the majority of children, especially the boys, but most

of such acts remain undetected, belonging to the vast field of hidden crimina-

lity.

If it happens that the authorities take note of the misbehaviour the case

result in

may be dealt with by the Child Welfare Boards,

and perhaps

supervision or probation, by and large of the same type—the age of course

being taken into consideration— as applied if the child was above 14 years

of age.

In a number of cases the child has to be placed in an institution,

especially when the family situation is so adverse, that any cooperation between

the family and the probation officer is too difficult.

2

Withdrawal of charge

Against young offenders between 15 and 17 years of age the public

prosecuter will generally withdraw the charge which may also be called

conditional suspension of the criminal proceedings.

In most cases the prosecutor

can recommend that the Child and Youth Welfare Authorities exercice super-

vision of the offender or send him to a special institution for young people

(Act on the Administration of Justice, sect. 723), not to be confused with

Youth Prison (The Danish Borstal System).

In fact the same conditions as

regarding the suspended sentence may be applied here.

However, it may also

in certain cases be decided that the withdrawal of charge takes place on the

only condition that the offender leads a crime-free and regular life.

The above

mentioned conditions can only be imposed in cases where the offender has in

court made an unreserved confession.

Withdrawal of the charge can for instance take place by offences

against property of minor importance, crimes of violence without serious damage

and sexual offences of a

‘less

aggravating nature”,

If the offender commits new offences or break any other of the conditions

connected with the withdrawal of charge the cases can be reopened.

In practice no big difference exists between withdrawal of charge in the

youngest age group and suspended sentence for young people above 17 years

of age.

The authorities which exercise this type of care are the Child and

— 296 —

Juvenile 'Welfare Authorities which are organized locally in Child and Juvenile

The Child 'Welfare Boards

Boards (Act on Child and Youth Welfare, ch. 2).

have traditionally selected their probation officers (supervisors) among laymen

interested in youth problems, and not seldom also engaged in the political

life of the municipality, but especially in towns there is a tendency towards

employing people with training in social work.

In the small towns the occu-

pation within the Child Welfare is only a part time job, and this draws a

rather narrow limit as to the qualifications of the supervisors which can be

fulfilled, but the development during the later years has definitively been po-

sitive.

3

Suspended sentence

This paragraph deals with suspended execution of the sentence and pro-

bation.

The terminology in the vast literature on these topics is neither clear

nor consequent.

Certain forms have, however, some important elements in

common, and shall be treated together—A few words about the historical

development of the suspended sentence in Denmark may serve as an intro-

duction.

Denmark was not among the first European countries to introduce the new

system as a reaction against crime, but it was the first country in Europe

to make statutory provision for the combination of the suspended sentence

with probationary supervision (Amendment to the

1866-Criminal

Code of

1-4-1905).

In other respects the rules were highly influenced by the Norwe-

The main section of the

gian Amendment of 1892 and the Act of 1902.

Danish Amendment determines that

“Where the penalty imposed does not

exceed other penalties than fine, imprisonment of forced labour; the terms

of the sentence may under mitigating circumstances—such as age, previous

moral conduct, unreserved confession, the trifling value of the object, rendered

of offered compensation, acceptance of moral care—determine that the exe-

cution of the sentence shall be suspended.

The suspension may be conditioned

by the payment of compensation within a stipulated time limit and, according

to the circumstances, the offender must submit to a more precisely “defined

moral care”.

In the Criminal Code of 1930 a number of changes were introduced.

The most important were

1)

The sentences should not exceed imprisonment for one year.

This, ho-

wever, was generally an extension in relation to the practice of the

previous years.

2)

Mitigating circumstances were not necessary.

3)

Probationary supervision was made the general rule.

4)

Pre-sentence investigation was mandatory.

5)

A suspended sentence which was not served should be remitted, and it

should not be counted as a conviction in respect of any future recidi-

vism.

Knud Waaben, Betingede straffedomme, 1948, p. 57 and Appen-

dix II.

— 207

10 a

In 1961 and 1965 the sections concerning suspended sentence of the

Criminal Code of 1930 were revised.

There were four main points to be

underlined

1)

The introduction of suspension of sentence.

2)

The pre-sentence investigation.

3)

More detailed rules about the conditions which might be imposed on

the offender; and

The “combination sentence”.

4)

The existing system may in itself be characterized as a combination of

The

elements from the old European and the Anglo-Saxon Probation System.

main legal rules are laid down in the sections 56-60 of the Criminal Code.

I

— The act does not contain any rules or directives concerning the

application of suspension of sentence and suspension of execution.

Suspension

of sentence should be applied if the court finds it unnecessary that the penalty

be served.

In cases where the court comes to the opposite result a penalty

should be fixed, but the execution suspended. This means that special reasons

must make themselves felt if a penalty should be measured out, e.g. the assump-

tion that fixing the term of imprisonment might support the preventive effect

of the conviction.

The length of the penalty is insignificant, and the same

holds true of the type of the offence committed.

Il. — According to the Act on the Administration of Justice, sect. 800 a,

It should contain information

a pre-sentence investigation usually takes place.

on the former career and present circumstances of the accused in home, school

and employment, on his physical and mental condition and on any other cir-

cumstances, likely to be of importance in deciding the case.

If possible and

desirable, this enquiry shall be made by an institution responsible for the super-

vision of probationers, as a rule the Danish 'Welfare Society.

Ill. — The most important conditions of the suspended sentence are that

the court may decide that the person concerned should be submitted to super-

vision through the probation period or part of it.

Among the other condi-

tions the act specifies that the sentenced person

1)

submit to regulations concerning residence, work, education, leisure time

activites or association with certain persons ;

2)

stay in suitable home or institution ;

3)

abstain from abuse of alcohol, narcotics and other drugs ;

4)

submit to treatment of such abuse, if necessary in a hospital ;

5)

submit to psychiatric treatment, if necessary in a hospital ;

6)

submit to the decisions of the probation officer regarding restriction as

to free disposal of earnings and fortune, and fulfil his financial obli-

gations ;

— 208 =

7)

pay indemnity of loss caused by his offence.

Other conditions may be

used at the discretion of the court.

The supervision of the probationer is carried out by the Danish Welfare

Society (Dansk Forsorgsselskab) which also takes care of the main part of

the paroless (see app. ).

IV. — If an unconditional sentence is deemed necessary but the personal

circumstances of the accused would support the application of a suspended

sentence the court may decide that part of the penalty, but not more than

three months, is served, whereas the rest of the penalty is suspended.

The

mos important practical field of application for the combination sentence are

cases where an offender has committed property offences, which would result

in a suspended sentence, and drunken driving which in Denmark always

results in a unconditional sentence (in most cases simple detention, a lenient

form of imprisonment).

Without the combination sentence such offenders would

have to serve the whole of the penalty in prison or be let off more lightly

with a completely suspended sentence.

4

Parole

After the expiration of two-thirds of imprisonment, but not less than four

months the Minister of Justice or a person or a board authorized by him

shall decide whether the prisoner shall be released on parole, but it may, on

the decision of the Minister, under special circumstances take place earlier

although not before the prisoner has served half of the penalty.

Regard should be had to the personal conditions of the prisoner; the

release should not be unwarrantable ; appropriate work must be provided for

him or his placement and maintenance otherwise adequately secured ; the

parolee must declare himself willing to comply with the conditions of such

release.

Account is taken of the length and nature of previous criminal ca-

reer, conduct and work in the institution, experiences from previous parole

periods, the desirability of probation.

At the release the person concerned

shall normally be placed under supervision and lead a law-abiding and

regular life.

The period of parole is usually 2 years (from 1 to 3 years).

Other conditions of probationary character may be imposed.

If the parolee breaks the imposed conditions the Minister of Justice may

1) alter the conditions and prolonge the period of probation, or 2) decide

that the remining term of the sentence shall be served.

For persons released

from certain special institutions, a board or the court makes the decision.

5

Fines

Fines exist in two forms in Denmark, as ordinary fines and as day-fines.

It is only within the field of the Criminal Code, the last type may be applied.

The amount of the single daily fine shall be fixed at a sum corresponding to

— 209 —

the average daily earnings of the person concerned.

Ordinarily fines may

be imposed as a penalty supplementary to other forms of penalties in the

case of offences committed for the purpose of gain, e.g. in connection with

a suspended sentence.

APPENDIX 11

PROBATION AND PAROLE IN DENMARK (*)

1

Probation

The definition of probation generally accepted is that probation is a

method of dealing with specially selected offenders and that it consists of

the conditional suspension of punishment while the offender is placed under

personal supervision and is given individual guidance or “‘treatment”,

In Europe two different systems are represented

The Anglo-American

probation-system with the offender placed on probation without sentencing

and the continental suspended sentence called “sursis” i.e. supervision as an

adjunct to the suspension of execution of a sentence already pronounced.

The suspended sentence has been applied in Denmark since 1905.

The Penal Code of 1930, sect 56 had the legal limit that the penalty

must not exceed imprisonment for one year, and it was stated that a special

enquiry should be made for the purpose of providing information for the

court on the former career and present circumstances of the accused.

In 1953 the Criminal Law Commission submitted a Report on suspended

sentences, recommending that a new form of suspended sentence—similar to

the probation-system—should be introduced.

Through and act of 31st May, 1961, amendments to the Penal Code

were introduced.

According to this the courts now have the choice between

1)

passing a suspended sentence without fixing the penalty ;

2)

passing a suspended sentence with a fixed penalty, the execution of

which is suspended ;

3)

pussing a sentence with penalty imposed of which a portion—not to

exceed 3 months—shall be served immediately, whilst the execution of

the remainder is to be suspended conditionally.

In connection with all forms of sentence condition of supervision may be

imposed for the probation period or part of it.

(%)

The Danish Welfare Society, November, 1965,

— 300 —

The probation period is normally 3 years, in special circumstances 5

years as a maximum.

Furthermore the following conditions are now mentioned in the Penal

Code

a)

regulations as to education, employment, place of residence, asparetime

activities and contact with certain persons ;

b)

placement in an institution for a period not exceeding one year ;

c)

abstinence from abuse of alcohol, narcotics and other drugs ;

d)

special treatment against abuse of alcohol ;

e)

psychiatric treatment, if necessary in hospital ;

f)

regulations as to administration of income and fortune ;

9)

compensation for damages.

Other conditions may be used at the discretion of the courts.

Of the 1415 persons who were given suspended sentences with super-

vision in the year 1964, 87 per cent of the females and 89 per cent of

the males were punished for offences against property and 6 per cent of

the males for sexuval crimes.

The probation period was 2 years in 40 per cent and 3 years in 58

per cent of the sentences.

The supervision period was 2 years in 80 per cent and 3 years in 20

per cent of the sentences.

Special conditions other than supervision have been used

in 60 per cent

of the cases for the year 1964.

The special conditions have been used with regard to

Cases

Place of residence and to employment

S st et b e e

745

® 66 046 00000 b00 00 0baas0ase

Sparetime activities

18

Placement

in an

institution

D R T S I S

133

Treatment in a hospital

L T R T R R R R R S T S PP

29

Treatment against abuse of alcohol

O GO O G )

269

Treatment against abuse of narcotics

Psychiatric treatment

GO0 O O OROTO O 0 GG Lr R Oy t3h

73

Administration of income

I T I

13

Compensation for damages

OFCE U (O U OROR i) ‘RO R0 OO0 0RO

12

In 1964 the courts made use of the combined unconditional and sus-

pended sentence in 130 cases with conditions of supervision, etc.

As the results of probation a survey of probationers sentenced in 1947

and 1948 showed that 58 per cent of the men and 67 per cent of the women

s B0

As to the

terminated their period of supervision (2 to 3 years) satisfactorily.

rate of recidivism the survey covered an observation period from 3 1/2 to

5 1/2 year inside which 40 per cent of the male and 30 per cent of the

female probationers were sentenced to imprisonment or committed to special

correctional institutions.

2

Presentence investigations

The rules concerning presentence investigations are now to be found in

the Criminal Procedure Act, sect. 800 a and 800 c.

These investigations of the social background of the accused person will

usually be performed when the question of withdrawal of charges, suspended

sentence or commitment to Borstal (juvenile prison) arises.

As regards Borstal

a mental investigations may be instituted alternatively.

The investigations may be performed without regard to the protest of the

accused, but information from his relatives, former employers or other private

persons cannot be collected without his consent or a court order.

If he has not

confessed to the crime a presentence investigation will usually not be performed

without his consent.

The presentence investigations are made by the Danish Welfare Society

Copies of the presentence

at the request of the prosecution (or the court).

report are sent to the court, the prosecution and counsel for the defense.

In 1964 the Danish Welfare Society performed about 2300 presentence

investigations.

3

Parole

Rules governing release on parole were introduced by the Penal Code

of 1930 and have been amended by the Act of 17th May, 1956, and by the

Act of 4th June, 1965, giving the institute a winder field of application.

As regards the authority competent to take decisions in matters of release

on parole, the following three systems are applied in Denmark :

1)

a purely administrative one ;

2)

one in which the decision is made by a special board of experts including

a judicial element ;

3)

one in which the decision is made by the ordinary courts.

The question as to which system is applicable depends upon the importance

of the decision.

As for system 1, the purely administrative decision, which rests with the

Minister of Justice, is applied in the case of ordinary sentences of imprisonment

for a definite term.

In these cases, release on parole may be granted on the

expiration of two thirds of the term of imprisonment, subject to a minimum

of four months.

— 302 —

In special cases, release on parole may be granted when the prisoner has

served on half of his term of imprisonment, subject to a minimum of four months,

This rule is used e.g. when a postponement of the release will mean, that the

prisoner cannot accept an offer of a most favourable job, that his own firm is

threatened by a financial break-down or that the health of the prisoner himself,

his wife or children is at stake.

The decision is made on the basis of a written recommendation from the

governing body of the institution.

Release is subject to the condition that this

measure is not unwarrantable with regard to the personal situation of the

prisoner ; that appropriate work has been provided for him or that his employ-

ment and maintenance have otherwise been adequately ensured, and that he

declares himself willing to comply with the condition of such release.

The authority which decides upon release on parole also decides whe-

ther recommitment shall take place if the prisoner fails to observe the con-

ditions prescribed for such release.

The period of parole is usually fixed

at 2 years (minimum 1 year, maximum 3 years).

If the unexpired term of

imprisonment exceeds 3 years a parole period of up till 5 years may be

fixed.

If no decision for recommitment is made at the expiration of the period

of parole, the term of imprisonment is regarded as having been served at

the time of release.

Considering that about 90 per cent of the sentences of imprisonment

in Denmark are for a term of two years or less, remission of part of the

term is of minor importance, and an administrative decision has therefore

been considered sufficient in these cases.

In the considerations as to whether release on parole should be granted,

account is taken of the following factors ; Data on previous record ; conduct

in the institution, e.g. whether the prisoner has made an effort to utilize the

opportunities provided by the institution in the form of instruction and voca-

tional training ; nature of previous criminality ; experience from previous release

In the case of

on parole ; or the desirability of submitting him to supervision.

grave criminality, and if warranted by special local considerations, the ques-

tion is submitted to the Public Prosecutor or, in the case of sexual offences,

to the Child 'Welfare authorities,-if the paroles is to return to a home in which

there are minors.

In addition to the ordinary condition concerning a law-abiding and regular

life and supervision, special conditions are widely applied.

In 1964, 602

In

persons were released on parole or after being reprieved by the King.

respect to about 60 per cent of these persons special conditions were prescri-

bed concerning residence and work, placement in special homes, hospitals,

etc., anti-alcoholic treatment with the ‘application of antabus, or of not taking

drugs.

As regards the question of fixing the psychologically right time for release

on parole, the possibilities have been greatly increased through the higher fle-

xibility by te above mentioned amendments of the rules governing release on

— 303 —

parole, under which such release may take place at any time after half the

sentence has been served.

Even if release has been refused on the expiration

of two thirds of the term, the governor may re-open the question of release

on parole at a later time.

This may be done in consideration of a favourable

offer of employment or a changed attitude in the person concerned after he

has through a refusal acquired a better insight into his own conditions.

As for system 2, in which the decision is made by a special board of

experts including a judicial element called in Denmark the Prison Board ; it

is composed of a judge as chairman, the Director of the Prison Service, a

psychiatrist, and one or more persons concerned with social welfare services

for young persons or for discharged prisoners.

The Prison Board decides upon release on parole for persons who are

discharged from Borstal training, corrective training or preventive detention.

These measures are of a relatively indeterminate character ; Borstal training

up to three years ; corrective training, which is applied to harmless but persis-

tent recidivists, from one to four years; and preventive detention, a sanction

applied to dangerous and habitual recidivists, from four to twenty years.

As for system 3, in the matter of quite indeterminate measures, the deci-

sion is made by the ordinary courts.

Under Section 70 of the Penal Code,

the courts may, if it is considered necessary in the interests of public safety,

order the detention of persons who are insane or seriously deficient mentally

and of persons unamenable to punishment, whose essential condition at the

time of committing the punishable act was one of mental underdevelopment,

weakness or derangement of mind, including sexual abnormality (psychopathic

personalities).

No minimum or maximum terms having been laid down, decisions regar-

ding the cessation or modification of the measure are delegated to the courts,

and the suspension of the measure quite corresponds to what is called release

on parole in the other forms of sanction.

The courts, however, do not follow the individual case, either during the

insititutional detention or during the period of parole, and consider the case

only when the question of release or recommitment is raised by the Public

prosecutor, the governing body of the institution concerned, or a guardian

appointed for the prisoner.

As it is a matter of determining what is required in the interests of

public safety, it is found necessary that the decision be taken by the ordinary

courts, though in this way we fail to get a special body with particular insight

into the problems of release.

All parolees are submitted to regular supervision, and release is subject

to the condition that the parolee lead a law-abiding and regular life and ob-

s -rve the instructions given by the supervisor ; further conditions may be added.

In accordance with the theory prevailing in this country all forms of treat-

ment given in penal institutions must aim at the release of inmates in the

— 304 —

sense that such treatment should be designed to facilitate their return to the

community, and this aim must be pursued from the very beginning of institu-

tional treatment.

This aim of rehabilitation is supported by practical welfare measures

taken before and at release.

The prisoner is provided with clothing, his mem-

bership in National Health Insurance and in an appropriate trade union are

regularized, arrangements are made to prevent tax arrears and other debts

from embarrasing the prisoner, lodgings are provided, employment is found.

All these steps have to be carried out by the welfare officers attached

to all the penal institutions.

It

The parole system is considered to be of the greatest importance.

helps to create a good atmosphere in the whole institution, as all prisoners

know that they have to behave well if they want to leave the institution before

they have served full time, and it is also a great help in reducing he number

of escapes.

4

The Probation and Parole Service

The Probation and Parole Service in Denmark is directed by the Danish

Weltare Society, a central organisation for supervision and after-care of every

type

Since the middle of the 19th century private associations have worked in

assistance of prisoners after release ; and when the suspended sentence was

introduced a new private organisation was started with the purpose of assis-

ting in the carrying out of investigations and supervision.

In 1951 all exis-

ting associations were amalgamated into one : The Danish Welfare Society.

The Danish Welfare Society is a private organisation with financial sub-

vention from the state.

The society has about 6000 private members and a board of represen-

tatives of 60 persons elected every year at a general assembly.

The repre-

sentatives elect once a year a board of directors consisting of 16 persons, and

this board (or its sub-committee) will meet every month to deal with more im-

portant questions of administration and finances.

The Danish government pays all costs of administration (6 millions Danish

kroner per year), and the Danish Welfare Society collects from private mem-

bers and funds, etc., an annual amount of about 500.000 Danish kroner to

be used for economic help to probationers and parolees and for running homes

and hostels for probationers, parolees and voluntary after-care cases.

The current administration of the Society is in the hands of an executive

director at the Central office of the Society in Copenhagen, which is the centre

of administration of the probation and parole service.

The practical work of

supervisions and investigations however is decentralised and divided between

— 305 —

subdivisions at the Central office and 8 district-offices outside Copenhagen,

each of them covering one or more counties.

The total staff of the Society consists of about 130 full-time employees ;

of these 60 are probation and parole officers, 50 clerks and 20 are attached

to the homes and hostels.

Probation and parole officers are usually graduates

from the Danish Social Highschool established by the Ministry of Social Affairs,

where they have had a 3 years course including in-service training.

The Danish Welfare Society makes extended use of voluntary workers.

The professional staff of probation and parole officers is assisted by about

850 private voluntary supervisors, 400 having only one supervision case,

300 from 2—5 cases, 100 from 1—15 cases, and 50 from 16—50 cases. The

voluntary supervisors receive a small fee of about 20 Danish kroner per month

per supervision case.

The volunteers are people from all professions, most of them with a basic

knowledge of social work, e.g. 35 lawyers, 30 deacons,

140 clergymen,

100 teachers, 70 police officers, 50 National Assistance officials, 70 trained

social workers, 20 doctors, 30 prison officials and 50 officials from several

social institutions (child welfare, unemployment agencies, alcoholics’ clinics, etc.).

The most difficult supervision cases are handled directly by the professio-

nal staff, but in about 75 per cent of the cases a voluntary supervisor is

appointed who will be responsible for the direct contact with the client and

will handle the ordinary problems that arise during the supervision period.

The volunteer is obliged to keep the Society informed on the development of

the supervision through regular reports and he can call on assistance from the

professional staff when necessary.

Usually the probation or parole officer will be reponsible for 100-150

supervision cases out of which he will hadle 25-30 cases himself whereas

he for the remainder will supervise and control the work of the voluntary wor-

kers appointed.

The parole supervision is the responsibility of the Danish Welfare Society

whose origin springs from the former Discharged Prisoners’ Aid Societies

connected with the single prisons and the Danish Welfare Society is still wor-

king in close cooperation with the prison service.

To ensure the maintenance of an unbroken connection between the prepa-

ratory social work with prisoners that is carried out by the welfare officers

in the prisons and the work to be done after release a special branch office

of the Danish Welfare Society has been attached to all penal institutions

(8 state prisons and 4 Borstals) from which release on parole can be granted

to a prisoner.

The prison governor acts as the local representative of the Danish Wel-

fare Society and when parole has been granted the governor in his capa-

city as the Danish Welfare Society-representative decides in which way the

supervision is going to be arranged. He can decide that :

— 306 —

1)

the supervision shall be exercised directly from the Society's branch at

the prison by one of the prison officers, preferably the welfare officer;

2)

the Society's branch at the prison shall appoint a voluntary supervisor,

who will then send his reports directly to the branch at the prison, or

3)

the supervisor shall be delegated to one of the local district offices

(or the Central office) of the Danish ‘Welfare Society, which may in turn

appoint a voluntary supervisor.

The close contact between the prison service and the Danish Welfare

Society was fortified in 1964 when a joint file system was introduced in both

organisations

When a former probationer is committed to prison the Danish

Welfare Society will send his supervision file to the prison, where the welfare

officer will continue the file, and when the prisoner is released on parole his

file will be returned to the Danish Welfare Society for continuation during

the parole period

The Danish Welfare Society is at present supervising about 5000 persons,

Besides this the Danish

3500 of which are probationers and 1500 parolees

Welfare Society is perfoming about 2300 presentence investigations per year

as mentioned above

However, the Danish Welfare Society has a winder field of operation as

it is the aim of the Society to yield assistance, guidance and support to all

persons who have been in conflict with the Penal Code as far as they are

interested in accepting this aid

As a consequence of this scheme all the 55

local jails in Denmark are visited regularly by the probation and parole offi-

cers so that all the inmates of the jails who are held in custody awaiting trial

or serving short-term sentences (imprisonment for less than 3 months) have

the opportunity to consult a trained social worker on their problems

Likewise

all released prisoners are welcome to apply for voluntary after-care through

the local offices of the Society

5

Homes and Hostels of the Danish Welfare Society

The Danish Welfare Society is running 5 institutions for criminals

1

“ASSERSBOLGARD” in Jutland, a parole home established in 1899

It has a capacity of 35 men, age group 20-35 years, all working on the

farm (about 350 acres) and earning 6-8 Danish crowns per day, half of which

amount is compulsorily saved for the day of departure

The staff consists of a director, a part-time clerk and a couple of farm-

hands

This home receives parolees, either directly after their release from pri-

son or following a “break-down

during the parole period

Some probatio-

ners will be placed here too, as well as ex-prisoners are received on a com-

pletely voluntary base having served their full sentence

— 307 —

The length of the stay is less than 2 weeks for 35 per cent, from 2-4

weeks for 30 per cent, 1-2 months for 20 per cent, and the remaining 15 per

cent will stay from 2-12 months.

2

“LYNG” in Jutland, a parole home established in 1904.

It has a

capacity of 40 men, age group 35—about 70 years (but no maximum), all

working on the farm (about 350 acres) or occupied at heath-cultivation.

The staff consists of a director, a part-time clerk and a couple of farm-

hands.

The home is run on lines similar to the above mentioned home, but the

average period of stay is a little longer.

Some of the older criminals will

stay for several years when they are not fit to be placed in ordinary old-age

pensions.

3

“ENGELSBORG” in Copenhagen, a combined probation home and

hostel, established in 1907, situated in a villa quarter about 10 km from

the centre of the town.

It has been completely rebuilt in 1961 and has a capacity of 24 women,

age group 16-25 years, all of them living in simple rooms.

This institution receives mostly probationers but a couple of girls under

supervision by the Child Welfare Organisation may be placed here too.

A majority of the women are working inside the institutions receiving

vocational training in domestic work (kitchen, laundry, etc.) as well as sewing

and type-writing.

After a period of training and observation the women are

placed in different trades outside the institution at local factories, shops, etc.

These women will have to pay a reasonable amount about 75 Danish kroner

a week—+for board and lodging depending on their income.

The staff consists of a director, a deputy-director, two teachers and three

assistants.

Furthermore a psychiatrist will visit the home twice a month to

discuss the current problems of the women are all regularly attended to by

a local physician.

The average length of stay is about 6 months.

The responsibility of supervision rests with the director during the wo-

men’s stay at the home as well as after the departure, unless a woman is set-

tling too far away from the institution in which case the supervision will be

transferred to the local district-office of the Danish Welfare Society.

4

“RINGGARDEN” in Copenhagen, a probation hostel established in

1950 as a self-governing institution and taken over by the Danish Welfare

Society in 1955.

It is situated near the centre of the town in an ordinary

dwelling house on the first floor in 2 flats, which have been combined.

It has a capacity of 6 men, age group 18-25 years, all of them living

in double rooms.

— 308 —

This institution receives probationers and occasionally a man released on

parole from Borstal.

All of the inhabitants are working outside the hostel and have to pay

about 80 Danish kroner a week for board and lodging.

The staff consists of a director, a part-time reliever, and part-time domes-

tic servants.

The average length of stay is 2 months.

The responsibility of supervision

rests with the director as mentioned

above.

5

“BRONDBYHUS” in Copenhagen, a probation hostel established in

1957 in a former seaside hotel about 13 km from the centre of the town.

It has a capacity of 24 men, age group 18-25 years, living in 20 single

rooms and 2 double rooms.

This institution receives probationers and a couple of men released on

parole from Borstal.

All of the inhabitants are working outside the hostel and have to pay

100 Danish kroner a week for board and lodging.

In case of unemployment

one or two of them may be employed at gardening, painting or odd jobs of

repair at the institution.

The staff consists of a director, a deputy-director, a social worker, a social

science student (as part-time relief), 3 full-time and 2 part-time domestic servants.

The average period of stay is about 6 months.

The responsibility of supervision rests with the director as mentioned

above.

Usually the staff is supervising a group of 30-40 ex-inhabitants.

The placement in these institutions is voluntary in the sense that the

probationer (parolee) might refuse to stay there.

But if he has no other place

to go to which the discretion of the supervisor deems suitable, the case is

likely to be reported to the court (or the parole granting authority).

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Outline

of Non-Institutional Treatment of Offenders

by M. LOPEZ-REY

Professor, LL. D.

. — THE MEANING, PURPOSE AND KINDS OF TREATMENT

The preven-

1)

Treatment as part of the penal system and criminal policy.

tive value of treatment programmes.

2)

The purpose of criminal justice as the main determinant of freatment

protection of society, of the individual, the three traditional Rs, the extent

and feasibility of rehabilitation. Social criminal justice as primqry pur-

pose

3)

Penal System, Criminal policy and Welfare or Social policy.

Treatment

Human rights, numbers and ways and means.

and national development.

The different kinds of treatment

open, semi-open and closed.

Present

4)

penal structures and possibilities in developing countries.

I

— MODALITIES OF NON-INSTITUTIONAL TREATMENT

Enumeration.

1)

Their feasibility in developed and developing countries.

Thoretical assertions and practical purposes.

Juveniles and adults.

2)

Fine, Probation and Suspended Sentence.

a)

Appraisal of present policies, findings and claims ;

b)

The question of primary offenders ;

<)

Welfare Boards, Juvenile courts, Probation services and general social

services,

3)

The Manhattan Court Employment system.

4)

Compulsory work, compensation and restitution.

5)

Attendance at certain institutions, exclusion from or prohibition of cer-

tain activities, professions, etc., bond to be of good behaviour and own

recognisance Others.

— 311 —

IIl. — AFTER-CARE AS NON-INSTITUTIONAL TREATMENT

1)

Unconditional and conditional release.

Parole.

Present claims, policies

and results.

2)

Half-way houses and other facilities.

IV. — THE NEED FOR NEW APPROACHES IN DEVELOPING COUNTRIES

1)

Present contradictions and misconceptions.

Professionalization of poli-

cies and programmes.

Family and community roles.

e

2)

The dangers of a

paper” criminal policy.

National reality, needs and

purposes.

Development and the treatment of the offender.

Organizational aspects

and problems.

3)

The need for national penal systems in developing countries.

Crime as

The limits of treatment.

a socio-political concept.

Simplification of pe-

nal systems and of non-institutional treatment.

4)

Suggestions and final considerations.

— 312 —

Psychiatry

in the Administration of Criminal Justice

in Nigeria

by T. ASUNI, MA, M.D., D.P.M.

Senior Specialist and Medical Superintendent

Aro Hospital for nervous diseases, ABEOKUTA

As the theme of this meeting is Non-Institutional Treatment of Offenders,

| shall only treat cursorily the psychiatric factors in the process that gets the

offender committed, and devote more time to the committed offender.

It is noteworthy that amongst the Yorubas of Nigeria, persistent deviant

criminal behaviour like stealing has been recognised as an ill for which the

traditional

healer has often been consulted.

While the behaviour was not

described in sophiscated terms as compulsive or impulsive or kleptomanic, it

was still felt the traditional hearler could help, especially in delinquent children.

What the traditional healer sometime did was to make some medicinal scratches

under the lower eye lids of the delinquent—presumably to remove the greed

from his eyes.

The association of non-judicial but medical means of controlling

behaviour is therefore not new to Nigeria.

Unfortunately this association look a more negative form when the prison

became the chief house of custody for not only criminal lunatics, but also

for the dangerous and antisocial lunatics before they commit any criminal

offence.

The reason for this being mainly the extreme shortage of psychiatric

facilities in the country.

The prison authorities in Nigeria have expressed their concern about

this unsatisfactory state, and did request the removal of the psychotic from

the prisons.

It proved a formidable task with which the Ministries of Health

could not cope without major expansion of their psychiatric facilities.

The

situation therefore remains essentially the same especially in areas where

there is very little or non psychiatric facilities.

Psychiatry should only be concerned with :

a)

helping the court towards arrival at its decision.

This may be in terms

of certifying the accused unfit to plead, or giving such factual clinical

information to assist the court in deciding culpability.

The court may

also be guided in its sentencing practice by the clinical information of the

psychiatrist ;

— M3 -

b)

ireatment of those committed for treatment either in the prison or psychia-

tric hospital.

It is perhaps a good thing that developing countries cannot afford

psychiatric opinions called by accused and prosecutor independently and

separately.

There are no private practising psychiatrists in Nigeria.

Most

psychiatrists in Nigeria are government employed, and they are not paid fees

for giving evidence in any case either by the accused or by the prosecutor.

This situation has the potential advantage of objectivity.

Of course it also has

the potential disadvantage of superficial and cursory reports based on ina-

dequate examination because_of lack of incentive.

Yet it is this same incentive

This does

which may cause bias in the opinion given by the psychiatrist.

not necessarily imply that all differences in the opinions given by different

psychiatrists in a case are due to incentives offered.

Indeed, where there is

no incentives there may be differences of opinion which can be due to

differences in interpretation of facts or differential weight put on facts.

Such

cases are rare, but one must admit, do exist.

Psychiatric opinion may be essential in some cases, but sociological infor-

mation gathered by social workers as probation officers is essential in more

cases, and this is what is sadly lacking in this country, especially with adult

offenders.

There was the case of a man who had been brought for psychiatric

treatment in Aro Hospital, Abeokuta, from some considerable distance.

It was

decided to treat him as an outpatient coming from a village near the hospital.

His brother who was to stay with him in the village left a while when the

patient appeared to have settled down in the village.

The patient was not seen

again after two weeks.

When he attended the hospital again, he was in

prison uniform.

Apparently during a confusional state one night he wandered away from

the village into town and went into a house to sleep.

He was regarded as a

thief and he was arrested and sentenced to some term of imprisonment.

He

was asked in hospital if he told the court that he was a patient.

He said

he did. The court certainly did not check up from the hospital if this was so.

If a social worker had been avaible to deal with this case, the information that

the accused was a patient at the material time would have impressed the court

more strongly. Cases of this type can be multiplied.

At this juncture it is necessary also to state that psychiatric evidence

given by general duty medical officers with little knowledge of and experience

in psychiatry may be misleading.

Yet these medical officers must be called to

give psychiatric evidence because of the shortage of qualified psychiatrists.

There was the tragic case of a man who had committed murder.

The doctor

who gave evidence in this case told the court that the accused was depressed

Yet he concluded

and he gave evidence leading to his finding of depression.

that the accused was normal.

The accused was condemned to death and hung.

— 34

==

One way to remedy or improve the situation, until such time that psychia-

trists are readily available (and this is a long way ahead) is to intensify the

psychiatric training of undergraduate medical students to enable them to give

meaningful and helpful guidance to courts.

Another way, which is complementary to the above is that lawyers and

especially those in the judiciary should be given some psychiatric orientation

which will enable them to be sensitive to psychiatric observation available and

also challenge the inconsistency in any psychiatric opinion given in court.

Indeed, they can act as a check on the extravagant, superficial and contra-

dictory statements of doctors and psychiatrists in courts.

They can also couch

their questions in a manner which will evoke meaningful response from doctors

and psychiatrists in a not too technical language.

They will also be mindful

of the limitation of psychiatry in

relation to examinations and

reports to

the courts.

Perhaps the greatest handicap in the way of the psychiatrist examining

an accused and presenting a report to the court, is the considerable time lag

between the offence and examination.

This may be many months.

The only

reliable statement that can be made at this junction is whether or not accused is

Statements made about the mental state of the accused at the

fit to plead.

time of the offence cannot carry the same degree of reliability especially

when there is no independent historical account of the patient’s life prior to

the offence which can help the psychiatrist to see the offence in the proper

context,

The lack of information available to psychiatrist is worthy of emphasis.

It highlights again the vital need for social work on accused persons, prior to

their being referred for psychiatric examination.

Very often people are just

sent for psychiatric examination and report with only the charge made known.

Even the circumstances of the offence which can be made of immense help to

the psychiatrists are not made available as a matter of course.

It is not appropriate here to go into any full discussion of McNaghten

Rules, diminished responsibility and related subject.

Suffice it to say that with

modification of McNaghten Rules there has not been any noticeable problem

in Nigeria.

The factor of motiveless criminal behaviour in relation to homicide

only arouses suspicion as to the sanity of the accused and it does not necessa-

rily establish insanity by itself.

It still requires psychiatric opinion to state the

mental state of the accused.

INSTITUTIONAL TREATMENT OF OFFENDERS

To examine the feasibility of non-institutional treatment of offenders, it

is necessary to look into the merits and demerits of institutional treatment.

Institutional in this context refers to total institution which Goffman defines as

a place of residence and work where a large number of like-situated indivi-

— 315

=

duals, out off from the wider society for an appreciable period of time,

round of

life.

together lead an enclosed, formally administered

He gave

this definition in his book Asylums—Essays on the Social Situation of Mental

Patients and other inmates.

The dehumanising and demoralising effect of total institutions have been

repeatedly pointed out.

In the case of Mental Institutions, it has been proven

that the institutions, in a vast majority of cases, leads to additional problems on

the basic problems of the mentally ill inmates.

The result of the open door policy in psychiatry is not without problems.

In fact is more properly described as rotating door, in that while patients

are discharged early, readmission rate has increased.

The argument in support

of the rotating door policy is that it is better for the patient to spend even as

little as half of the year outside the hospital and within the community than

to spend a year concurrently in hospital.

One cannot conceive of a parallel

situation with criminals.

Secondly the ortating door policy throws a heavy burden on the community

especially on the relatives of the patients.

This burden may have the advantage

of increasing the tolerance threshold of the community, and in any case it is

made lighter by the roles played by the extensive social and medical ancillary

services.

It is too much to expect the tolerance of the community towards

the criminal to be increased when the risk of repeated antisocial behaviour

is very great.

Furthermore, one should respect the feeling of the community

who are of the strong view that the criminal should be punished whatever else

is done to him, and they also should be given as much feeling of security as

possible.

In Psychiatry, the emphasis is now on treatment as out-patient.

If admission

is indicated, it is for the shortest time possible and treatment can continue as

outpatient when the need for hospitalisation has been removed.

Furthermore,

the hospitals are now functioning less as institutions as the number of inmates is

smaller and more individualisation allowed.

In Aro Hospital for instance, patients can be treated coming from home,

or a neighbouring village if home is too far and the socio-cultural background

of the patient is in consonance with that of a village.

He can be admitted to

Aro Hospital, which allows great freedom and individuality and cannot be

strictly called an institution, for these reasons and also for the reason of number

of inmates.

Lantoro Institution is generally reserved for the dangerous men-

tally ill—civil or criminal.

Even in Lantoro there is still considerable freedom

within the institution and also considerable individuality.

The question is how much criminology can copy from psychiatry from the

point of view of non-institutionalisation.

Before looking into this closely, it is

necessary to look into the categories of prison inmates.

Like in most other

places, the vast majority of prison inmates in Nigeria are first offenders, most

of whom do not get imprisoned again.

The question arises whether it is the

— 316 —

first imprisonment that has reformed them or whether they would not have got

in clash with the law and imprisoned again, no matter whether or not they

were imprisoned in the first instance.

It will be a great guide if we know

for sure.

If it is established that first imprisonment is no more deterent and

reformatory than other means of dealing with this type of inmates, then more

than half of prison inmates will need not be imprisoned—if deterence and

reformation are principal factors.

The factor of punishment can be assumed

to be included in other methods of handling such cases.

While it is not meant to suggest that all criminals are mentally ill, since

both groups tend to be housed in institutions, and the negative sociological

impact of this is similar in both cases, perhaps one can borrow a leaf from

the other, bearing in mind, of course, the difference in the main objective of

the institutions.

The objective of the mental institution was originally mainly to protect

the community from the nuisance and eye sore which some mentally ill consti-

tuted.

It is only in very negligible cases that the mentally ill constitute a

danger to the public.

The consideration for the mentally ill for his own sake

was secondary to this main objective.

The orientation has changed considerably

in the last thirty years especially, and more consideration is being given the

mentally ill in his own rights, especially since it has been realised that institu-

tionalisation added more to his problems and tended to make worse.

The prison on the other hand started with punishment in terms of depri-

vation of liberty as its main objective.

The other objective was to protect the

community from the antisocial behaviour of the criminal for the time being.

The orientation has changed, at least in theory, towards consideration for the

prisoner as an individual.

The comparison can be extended further at least in a prospective way.

In psychiatry, early detection of mental illness is very strongly advocated.

Predictive studies in Criminology may serve the same purpose, but unfortu-

nately such studies have not attained the degree of reliability that can make

them useful.

The next best thing under the circumstance is emphasis on the

swift process of the law.

It is unfortunate that the process of the law is no

long that by the time the criminal is sentenced, the association of his offence

and the sentence is lost, and other intermediate episodes becloud the issue

in his mind.

This unfortunate situation also has a negative influence on the

process of therapy or reformation.

In psychiatry the possibility of outpatient treatment is first considered,

and implemented when necessary.

It is only when this fails that impatient

treatment is adopted.

This is not unlike probation service in criminology.

It is when probation has failed or is broken that imprisonment is enforced.

Failure of probation is often due to the heavy case loads of the probation

officers.

The area in which non-institutional treatment of offenders has proved

quite successful is with juvenile offenders.

On the whole it would appear that

—317 —

the community is more tolerant of juvenile offenders, as their offences generally

do not cost as much loss, harm and danger as adult offences.

With the

shortage of trained and experienced probation officers, it has been suggested

that respectable lay member of community with some status can be used to

help the young offender, who has a poor image of himself.

Attaching him

to someone of status in his community who is going to accept and acknowledge

him as a worthy person is reckoned to improve his self image.

It will be unrealistic to think of non-institutional treatment for all offenders,

just as it is unrealistic to think of doing away with all psychiatric hospitals ;

but the institutions can be made less institutional—by making them smaller and

less depersonalised.

There will always be criminals who are dangerous and

need to be kept in maximum security prisons.

The question has been asked about the need for a Broadmoor type of

institution exclusively for the insane criminal.

The role of the psychiatrist and

his aides in such an institution is confused with that of security personnel, and

this confusion minimises the therapeutic effect in the doctor-patient relationship,

which needs to be less dictatorial, less authoritarian, less regimental than is

necessary for the system.

For this reason it is necessary to have the mentally

disturbed in a psychiatric institution built for everybody.

After responding

to treatment such criminal patients can be transferred back to prison or

discharged home with necessary warnings and instructions.

In this country

it is still possible in many cases to find relatives who are willing to take charge

of such discharged patients.

Except from a medical point of view, and | do

not know of any such point of view, psychiatric criminal patients should not be

treated differently.

There are cases, however, which will need the maximum security type of

arrangement.

Having this type of section in a modern progressive psychiatric

hospital is to destroy the therapeutic ethos of the hospital, where it is necessary

to have the patients treated socially and medically alike.

It is my view that

when a criminal patient becomes a security risk in a psychiatric hospital, he

In view

should be kept in prison and appropriate treatment given him there.

of the shortage of psychiatrists, it will be necessary to have such patients

together in one unit in a place where psychiatric facilities are available.

This unit should be part of a prison—preferably within the prison wall.

It

should not be an entity by itself like Broadmoor.

How much the psychiatrists

in such special places as Grendon Underwood in the United Kingdom and

Herstedvester in Denmark, are identified with the security personnel is difficult

to ascertain.

These two institutions are manned by both psychiatric and

regular prison personnel.

SOME CLINICAL ASPECTS OF CRIMINOLOGY

Let us now look at the different psychiatric nosology and identify the

criminogenic aspect of each.

-— 318 —

Schizophrenia

.

This is a group of diseases which are characterised by detuchrﬁent from

reality, bizarre behaviour, delusions and hallucinations, thought disorder mani-

fested in content, sequence, logic, volume of speech; disorder of emotional

or affective response etc.

All these symptoms do not need to be present

before a diagnosis of Schizophrenia can be made.

This group is made up

of 4 main types depending on the prominence of certain symptoms or group

of symptoms.

In the Simple and Hebephrenic type of Schizophrenia, which usually start

at an early age, delusions and hallucinations are not prominent symptoms ;

but their behaviour is bizarre and they have thought disorder and also affective

disorder in terms of flatness, incongruity or lability of emotional response.

It is the bizarre behaviour and the disturbed thinking process that may lead

them into criminal acts—which usually are not sensible or meaningful and which

they may not make any effort to cover.

Their reaction to the offence

IS

usually one of indifference.

Their thought disorder may be so gross that they

may not be fit to plead in court.

Their reaction to sentence can be very

indifferent or even fatuous.

Fortunately the criminal offences they commit are

usually of trivial forms.

Catatonic Schizophrenics on the other hand may commit the most gruesome

With them, there may

offences, especially during the phase of excitement.

be no sense in their offence.

They may alternate between relative immobility

going to stupor on one hand, and excitement, restlessness and by peractivity

on the other.

During their less active phase, they do not commit any major

offence, but their active phase is the dangerous period ; and immediately

after this they may become mute and irresponsive to any form of stimulation.

When they become communicative again, with or without treatment, they

usually disown the charge claiming that they do not know or remember what

they had done.

Their odd and bizarre behaviour during custody or. remand

is usually revealing of their mental state, but this may lend itself to the inter-

pretation of faking mental illness, especially when they have spontaneously

become communicative and they deny the offence for which they are charged.

During pre trial psychiatric examination, they may be mute, or hype-

ractive, depending on the phase of their illness.

On the other hand they may

be in a state of remission.

When they will freely admit that they had been

ill, but unable to say in what way.

The more articulate one may be able to

convey the impression that he went blank for a period during which he did

not know, nor could remember what he had done.

The Psychiatrist has a

means of reactivating this hyperactive phase by the use of some intravenous

injection.

This is a helpful but dangerous procedure, and preparation must

have been made to deal with the violent reaction to the procedure before it

is carried out.

This is one of the conditions in which the circumstances of the offence,

the behaviour during arrest and remand in custody are essential information

— 319 —

The behaviour

for the Psychiatrist to help him formulate a reliable opinion.

of the accused for some period prior to the offence is also important.

The more common type of Schizophrenia which leads to criminal behaviour

is the Parancia Schizophrenia which is characterised by delussions of perse-

cution, idea of reference—that people are talking about him and making

direct or indirect reference to him.

They may also have auditory hallucinations

the contents of which is also persecutory.

On the basis of their false intensive

beliefs (delusions) which cannot be shaken by reason, and which are not in

keeping with their education, social and other factors, their criminal behaviour

is understandable.

Their offence ranges from assault occasioning harm to

homicide against those they believe are persecuting them.

In a culture where paranoid interpretations of events are common and

readily acceptable, one wonders how much miscarriage of justice have gone

on!

It is indeed a problem when even members of the legal and medical

professions from the culture also share in the paranoid interpretations.

A number of the criminal offences can be prevented if adequate notice

is taken of the complaints of the sick person and appropriate action taken.

It is not unusual for a paranoid schizophrenic to go and report his imagined

adversary in the police station or to somebody.

If he feels that no one is

paying attention to him and nothing is done, he takes the law into his own

hands as a measure of self-defence or self-protection from the imagined

persecution.

Unfortunately the police possibly due to their unawareness of

the significance of the report, or due to the heavy pressure of work tend to

ignore the complaints and drive the complainant out of the station.

Other

people to whom such complaints are made may confirm the complainant in

his false belief because they also share in the paranoid traits of the culture,

but they usually recommend some innocuous remedy.

Unfortunately this remedy

is usually superficial and does not deal with the root cause of the problem.

The situation is confounded by the fact that the paranoid schizophrenic

may not show other overt signs of mental illness.

He is well dressed, he

speaks rationally and coherently and may not exhibit any odd behaviour.

It is difficult for the lay man to believe that the man is sick, especially when

the culture tends to believe in paranoid interpretations and misinterpretations.

There is another form of schizophrenia which is undifferentiated because

it does not present any of the salient features that typify the four types.

A number of the four types after a long period of illness may become undif-

ferentiates having lost the classical symptoms that help to categorise them.

At this stage their offences may be trivial until they develop the exacerbation

of their illness with the typical symptoms.

Another group of psychiatrict disorder of some criminological importance

is the Manic-Depressive illness.

With mania the patient is irritable and quar-

relsome and may be involved in brawls leading to varying consequences.

Because of his euphoria and extreme optimism he may engage in many business

activities at the same time leading eventually to bankruptcy and criminal

=320, a

charges.

During the severe stage of his illness he may be destructive and

homicidal.

He may be excessively litigious and may be contemptious of the

law court.

His delusions of grandeur, on which he operates may lead him

to many criminal behaviour like wilful damage, assault, homicide, and defiance

of constitute authority.

At the height of his illness it is obvious that he is

ill with the pressure of talk and flight of ideas, hyperactivity, delusion of

grandeur, shouting and abusive manner of speech.

When the acute phase has subsided before the Psychiatrist sees him, the

Psychiatrist can only make a retrospective diagnosis and he can be helped only

by a detailed report of behaviour prior to the offence ; and also by a report

of previous episodes of the same illness since the illness tends to by cyclic.

Homicide in the depressive illness is a most pathetic occurence as the

depressed tends to kill those most dear to him to save them from what he sees

as impending doom and disaster.

The world, to him, is a wicked place and

the only way out is to get out of it and also get loved ones out as well.

He

usually plans homicide to be followed by suicide and quite often he is caught

before he commits suicide, or his suicidal effort may not be consumated.

This leaves room for the prosecution to argue that he is trying to escape from

the consequences of his act by attempting suicide.

An articulate person

accused of murder will be able to express his depressive delusions (e.g. that

In some

life is not worth living) and guilt feeling leading to his criminal act.

cases seen here it was not possible to get a free expression of such delusions

and the diagnosis of depressive illness is arrived at on the consideration of

other symptoms.

It is assumed that the psychological mechanism of denial is

sometimes brought to play when the depressed patient denies his offence.

This is not deliberate lying.

Psychopathy is the most difficult condition to define and delineate.

It is

characterised by immature behaviour, inability to learn from experience,

inability to establish any lasting relationship with anybody, lack of sustained

drive,

sometimes callousness,

repeated irresponsive behaviour,

tendency to

obtain immediate gratification without regard for later consequences no matter

how obvious these consequences may be, gross unreliability.

They have no

scrupules.

The inade-

This is a character defect, and it takes several forms.

quate psychopath drifts along without causing as much problem from a

criminological point of view as the aggressive, out-going psychopath.

They

usually have a life long history of irresponsible, a social or anti-social behaviour.

The aggressive and out-going psychopaths constitute the bulk of recidivists in

prison.

Punishment of any type does not seem to have any impact on them.

Their offences range from stealing, burglary to assaults, occasioning harm,

wilful damage and murder.

They include pathological liars.

The more intel-

ligent they are, the more difficult and dangerous they may be, because they

Use their innate intelligence in their perverse behaviour in a very clever way.

Usually there is no difficulty in establishing their guilt.

The enormous

problem

is what to do with them.

They are immune to punishment and

recalcitrant to training and reformation.

Even though in some developed

— 31 —

countries provision has been made to refer them for psychiatric treatment

rather- than imprison them, psychiatry has not evolved a reliable method of

treatment of psychopathy yet.

Fortunately it is left to the discretion of the

Psychiatrists in charge of mental hospitals to accept or reject such referral.

For security reasons, some psychopaths are better and safer in prisons than

in psychiatric hospitals.

There are other miscellaneous conditions which impinge on the area of

psychiatry which can generally be included under socio-pathy or psychopathy

or personality defect.

These include criminal sexual perversions which are,

so far, not commonly seen in this country (Sexual perversion is repeated which

brings sexual satisfaction without the possibility of procreation, and which

deviates from normal and which does not culminate in the normal heterosexual

practice.)

Kleptomania which also has not been observed frequently, and also

pyromania.

Epilepsy

This condition manifests itself not only in the classical and well known

convulsive movements,

but also

in co-ordinated,

apparently well

directed

behaviour which may be criminal.

It is this later aspect of epilepsy that is

often missed.

In spite of the co-ordinated and well directed behaviour, the

patient is unconscious of his act, just as he is unconcious of his convulsive

motions if his type of epilepsy is convulsive.

During this period of disturbed

consciousness he may enact any form of behaviour including murder.

Conse-

quently he does not make any attempt to conceal his act or run away.

Even

the convulsive type of epilepsy is often followed immediately by automatic

behaviour which may be criminal and of which the sufferer is not aware.

Epilepsy may be idiopathic when there is no demonstrable cause or it

may be symtomatic of damage to the brain from birth or later accidents,

tumour of the brain, or degenerative condition of the brain.

A detailed history

and clinical examination of the patient may help to elucidate the problem of

diagnosis, which can further be helped by the electro-encephalograph (EEG)—

which is a recording of the electrical working of the brain.

This recording

can also help to locate the source of the damage in the brain.

Mental Deficiency and Brain Damage

Even though mental deficiency is often defined in terms of intelligence

quotient and innate mental ability, it is often associated with either tendency

to be easily led into criminal behaviour, or with criminal behaviour stemming

from the same source as the mental retardation—damage to the brain.

It is

possible to proceduce ‘“sham rage” in some animals by experimentally stimu-

lating certain areas of the brain.

While considerable caution must be exer-

cised ‘in extrapolating from animal experiment to human behaviour, there are

322

convincing evidence from clinical experience that damage to some part of

human brain can lead to violent, aggressive intemperate behaviour.

In this context, it is appropriate to mention the immodest and other anti-

social behaviour of elderly people which may also be a result of the degene-

rative condition of their brains or even frank tumour in the appropriate part

of the brain.

Aetiology and Treatment

While it is important to take into consideration sociological aspects of

causation of crime and treatment of offenders, the place of psychological and

psychiatric factors cannot be over emphasised, especially as these are not as

popularly appricated.

In any case psychiatry also takes into serious conside-

ration sociological factors impinging on the individual in its consideration of

the individual in his totality and entirety.

No adequate and appropriate treatment programme can be outlined

without regard for the various aspects of causation.

From the point psychiatry

causation of abnormal behaviour is the interaction of genetic constitutional

factors and environmental factors which include both emotional—psychological

and physical environment, from conception to the material time when the

psychiatric investigation is being undertaken.

The environment cannot operate

on what is not there; but the environment can modify, enhance, mitigate,

encourage or dampen the potentialities that have been genetically and constitu-

tionally laid down.

It is only when due consideration is given to these factors that the pattern

and direction of treatment, can be outlined, and the limitation of treatment

can be anticipated.

- 323 —

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Traditional and Modern African Criminal Policies'"’

SEC e

Under African customary law, the payment of blood-money by the offender

to the injured has been the traditional means of redress for criminal wrongs.

As we have elsewhere dealt with the matter (1), we need not here enter into

the problem of whether traditional African law distinguishes between crimes

and civil wrongs or between public and private wrongs.

It is sufficient to

state that it does, although various African societies (and, indeed, all others)

have their own classifications of what are crimes and what are civil wrongs.

The concept of compensation, especially in murder cases, has a two-fold

purpose : to assuage the injured feelings of the surviving relatives (including

the family or the extended family) and to provide a temporary measure of

sustenance for his nuclear family (usually consisting of the wife or wives and

the children of the deceased) until other arrangements can be made by the

family or extended family as a whole.

The idea of imprisonment or confinement

in stocks was unknown to almost all traditional bodies of customary law, and

it was at any rate a very late arrival in the penology of few relatively advanced

African societies (2).

Even for lesser offences than murder, compensation in

cash or in kind has been the rule rather than the exception.

This explains why

the average African’s reaction to imprisonment under British law and adminis-

tration has been usually negative.

Imprisonment of the offender who has, for

instance, murdered the breadwinner or a family only to provide the Government

with an additional source of productive labour in the execution of certain

forms of public works such as helping to make roads, clear bushes or cleanse

the gardens of certain public buildings.

The dependant relatives get nothing

from this type of punishment, whereas under the customary law, the elders of

the community would not monopolise in this way the fruits of judging the

matter but would ensure that they are duly recompensed, according to an

established tarriff, by the criminal or by his immediate relations.

In such a

case, the new administrative policy that enforces imprisonment rather than

(k)

This

is

only a supplementary note

to my commissioned article entitled

«Traditional Forms of Public Participation in Social Defence», in International Review of

Criminal Policy, No. 27, 1969, p. 18-24.

(1)

See my Nature of African Customary Law, 1956, p. 110-119, Manchester Univer-

sity Press.

(2)

I have dealt at some length with the problems of customary criminal law

in my article, «Traditional Forms of Public Participation in Social Defence», in The Inter-

national Review of Criminal Policy, No. 27, 1969, p. 18-24.

— 3

2

D

compensation can hardly be regarded as satisfactory to the generality of tra-

ditional African communities (3).

Jeremy Bentham long ago advocated that the English criminal law and

procedure should adopt the principle of the State paying compensation for

victims of crimes, mainly on the ground that the State should accept ultimate

responsibility for crime because it is the State’s failure to protect the lives and

properties of the ordinary citizens that often leads to injuries to those concerned.

Criminality, according to this view, is brought out by the State’s failure to

create the right social and economic conditions which would make the incidence

of crime unnecessary.

Bentham was not taken seriously by successive Govern-

ments for well over one hundred and thirty years until at last the principle was

established (4) of the State paying compensation for victims of crimes of

violence. from State funds administered by the Criminal Injuries Compensation

Board (5).

According to the scheme, any person who suffers personal injury

in consequence of a criminal offence, or of trying to arrest an offender or to

prevent a crime, can apply to the Board for compensation.

In cases of fatal

injuries, the dependants of the victim may apply.

Any meaningful application of a scheme of compensation for victims of

violence has to be based on the principle that the State must bear the financial

burden.

The centre of the problem is to determine what financial contribution

the offender may be called upon to make, especially where he is (as is so

often the case) without means.

Is he to be better paid for his prison labour

so as to enable him to pay over a period by instalments deducted from his

earnings ?

Should there be a compulsory system of attachment of wages to

make the arrangement work ?

It seems clear that the answers to these

“loaded” questions must be in the affirmative, even though there are very real

difficulties inoperating such a scheme.

In the Federal Republic of Germany,

the prisoner may himself ask that a percentage of his periodic earnings be

paid over as compensation to his victim or to the latter's dependants.

Also,

the “busse” or compensatory fine may be ordered by the court to be paid to

the victim or his dependants as part of the criminal proceedings, that is,

without the need to bring a separate, later action in civil proceedings.

In

some jurisdictions, a provision for restitution is included in legislation permitting

probation orders to be made (6).

Cuba seems to have gone far in this matter of compensation by establis-

hing a national fund into which criminals adjuged to compensate their victims

If the criminal has assets, he

pay and which is also subsidised by the State.

(3)

Nature, op. cit.,, p. 300 for an example from Tanganyika.

)

After Miss Margery Fry's efforts had led to the appointment by the Home

Secretary of the Working Party whose report (Cmnd. 1406 of 1961) formed the basis of

Cmnd. 2323 : Compensation for Victims of Crimes of Violence.

(5)

The scheme for compensating victims of crimes of violence came into ope-

ration on August 1, 1964.

(6)

See S. Schafer’'s «Restitution to Victims of Crime»,

Stevens and Sons Ltd.,

London,

1960.

— 326 —

is made to pay up to one-quarter of his monthly income into the fund ; if sent

to prison, he pays the same proportion from his earnings.

Where he praves

contumacious, he may be forcibly detained, and may then be required to

work off his liability to the fund at a daily fixed rate from his income or

earnings.

Mexico again affords another interesting example.

The deductions

from his earnings take precedence over the State's right to reimburse itself for

the offender’s maintenance costs, as is the case in most of the other countries

with a compensation system.

A prison’s obligation to meet an undischarged

debt remains after his release.

Mexico also regards the order for restitution

as

part

of the punishment.

The U.S.S.R.

legislation

stipulates

that the

criminal is entitled to receive ten percent of his prison wages for his own

personal use before any payments are made either to the State or to the

victim of the crime (7).

Nigeria, as well as other African countries, should try a scheme of

compensation adapted to its local requirements and circumstances.

S T o

Unwritten customary criminal law has been abolished by our Independence

Constitution (1960).

Hence where a body of traditional customary law reco-

Thus

gnizes certain wrongs as criminal, the Court may refuse to enforce it.

in the interesting case of Aoko v. Fagbemi and anor. (8), a woman had on

February 21, 1961, been convicted and sentenced to pay a fine of £ 2 : 10 :

Oed. or go to prison for one month by a Grade 'D' Customary Court for an

alleged offence of committing adultery by living with another man without

judicial separation from her husband.

The court also ordered her to pay

£ 5 as compensation to her husband for the act of adultery which she admitted

having committed.

The application to the High Court on her behalf was for

an Order to quash the said conviction and set aside all consequential Orders

based upon it. and to refund to her all sums of money paid in compliance with

the Customary Court’s Order.

It was submitted on her behalf that, as there

was no written law which she had violated, her conviction was contrary to the

provisions of subsection 10 of section 21 of the Constitution of the Federation,

1960, which provisions are to the effect that a person shall not be convicted

of a criminal offence unless that offence is defined and the penalty therefor

is prescribed in a written law.

It was held by the High Court that the wo-

man's conviction was in violation of her fundamental right as guaranteed by

section 21 (1) of the Constitution of the Federation of Nigeria, 1960, and that

in the circumstances, her conviction should be quashed and the fine, as well

as the amounts paid as compensation and as court costs, should be refunded

to her.

Underlying this judgment was the idea that adultery is a criminal

(7)

Ibid.

@)

1961, All N.L.R. 400.

— 327 —

offence among the Yoruba community to which both husband and wife belon-

She

ged® and that the erring wife must pay compensation to her husband.

was saved, however, by the new criminal policy enshrined in the Constitution

that oral or written rules of customary criminal law should not be enforced

But what if the alleged rule of

as they would have been in former times.

customary law has been embodied in a statute or written law ?

The issue

arose quite recently in the well-known case of Obeya v. Soluade and ors. (9)

There, the accused had been charged with the offence of adultery with another

man's wife, contrary to s. 387 of the Northern Nigeria Penal Code which reads.

“Whoever, being a man subject to any native law or custom in which

extra-marital sexual intercourse is recognised as a criminal offence,

has sexual intercourse with a person who is not and whom he

knows or has reason to believe is not his wife, such sexual inter-

course not amounting to the offence of rape, is guilty of the offence

of adultery and shall be punished with imprisonment for a term

which may extend to two years or with fine or with both.”

But the Code provides in s. 3 that no person, after the Code came into

force, shall be liable to punishment under any body of customary law, so

that s. 387 does no more than to comply with s. 22 (10) of the Constitution

by provinding written authority for the punishment of an offence recognised

as such by the relevant customary law. The accused had contened that s.

387 is discriminatory in the sense that it applies only to persons belonging

to a particular community or religious group whose customary law recognises

extramarital intercourse as a criminal offence.

If it is discriminatory, it is

contrary to s. 28, 1, a or b, of the Constitution and is accordingly invalid.

It is clear, however, that s. 387 of the Code does not contravene s. 28 of

the Constitution because it is not based solely on religious consideration, but

it is also intended to preserve the personal law for every community whose

Nor

customary law regards extra-marital sexual intercourse as an offence.

can it be shown that s. 387 is directed to any particular community or reli-

gious group, in which case alone would it be contrary to s. 28 of the Cons-

titution.

The inference is that, while unwritten customary criminal law rules have

been abolished as they are often undertain and might sometimes be considered

obnoxious in the light of modern ideas, they may be saved by being enacted

by due process of legislation if not repugnant to natural justice and equity and

also not inconsistent with existing valid statutes.

Although for all practical

purposes, the term ’'customary law’ includes Islamic law, yet Islamic criminal

law being a written law with well-defined offences and prescribed penalties is

not affected by s. 22, 10, of the Constitution.

In the Obeya Case, the Custo-

mary law referred to in s. 387 of the Penal Code may either be the indigenous

9)

1970, S.C. 125/69. Delivered by the Supreme Court on March 6, 1970.

(10)

See Balogun v. Balogun (1934, 2 W.A.C.A. 290).

— 328 —

law or the received Islamic law of the particular community.

Since it has been

embodied in the Penal Code and is not repugnant in the sense just described,

the Supreme Court held it to be valid.

— I —

In the context of the closely-knit kinship groups which characterise most

African communities, there has been no developed system of guardiaship or

law

adoption under customary

Children and young persons have from time

immemorial been cared for by their immediate as well as remote agnatic rela-

tions are sometimes by collaterals.

The old and the infirm are similarly looked

after, so that, except in a few big towns and cities (like Lagos), the need for

orphanages and old peop'e's homes, has not so far been greatly felt in Nigeria

and in most African countries (10).

The same close ties of kinship explains the

sociological raison d'étre of the practice of the levirate, according to which

a wife of a deceased person is inheritable by his son or young brother pro-

vided that a) she freely consents (b) she is not older than the would-be inhe-

ritor and (c) the latter is ready and able to shoulder the responsibilities of

husband to the woman and of father to her children (if any).

The whole ins-

titution is a scheme of social insurance for the widow and any children she

may have ; the alternative might often be to throw her out of the family house

or compound if she should have no parents or other relatives or an outside

suitor ready and able to support her.

If she does not agree to marry within

her deceased husband's family, customary law permits her to leave and go

where she lists.

The advantages of this traditional arrangement for probation work in

modern penal system are evident, especially in rural communities wherein kin-

ship ties are still strong enough to provide the necessary framework for action.

Under the various Children and Young Persons laws (11), there may from time

to time be appointed fit and proper persons of either sex by name or as

holding any public office for the time being to be probation officers for such

areas as may be specified in the instrument of appointment.

The person so

named may at any time be relieved of his duties and, in case of his death,

Vil-

another person may be substituted by the court having jurisdiction (12).

lage headmen are sometimes appointed as probation officers or to supervise

the operation of the probation system within their areas of authority.

Since 1947, the manager of an approved institution may grant leave to

a detained person to be absent therefrom in the charge of such person and

for such period as he deems fit, but the manager may at any time order him

(11)

Laws, s

]7§g1 Children and Young Persons Act, Cap. 32 of the 1958 Edition of the

(12)

In the case of adults placed under probation, see s. 437 of C.P.A. (Cap. 43)

329 —

back to the institution (13).

If the relevant authority is satisfied that a person

in respect of whom a corrective order is about to expire would benefit by

further care or training, it may extend the period of the corrective order, or

direct a child or young person (aged between 14 and 17 years), whose period

of detention has exceeded twelve months, to be discharged, or direct him

to be released on condition that such child or young person shall be of good

behaviour and live under the charge of any trustworthy and respectable per-

son named in the order of release who is willing to receive and take charge

of him, and also direct that the custodian keep him at school or employed

ot some trade, occupation or calling (14).

Where the father or stepfather or

the mother or stepmother of a juvenile is found to have been guitly of neglect

which resulted in the juvenile's being committed to an institution or to the

care of an individual, the court may order such a person to make contributions

within his financial resources but not exceeding four pounds a month per

child (15).

No one under the age of fourteen years may be imprisoned (16), and

none under seventeen may be sent to prison if he can be suitably dealt with

in any other way whether by probation, fine, corporal punishment, committal

to a place of detention or to an approved institution, or otherwise.

If a per-

son under seventeen is in police custody or is imprisoned, he must not be allo-

wed to associate with adult prisoners (17).

Juveniles cannot be sentenced

to death, but must be detained during the pleasure of the President of the

Republic.

Where a corrective order has been made, its operation may be

suspended pending the completion of arrangements for the reception of the

person concerned into an approved institution, or on account of his ill-health

or for other good and sufficient reason; the court may then remand him in

custody or order him to be committed to the care of some fit and proper person

Parents

willing to undertake such custody, or many release him on bail (18).

may in certain circumstances be ordered to pay a fine, damages or costs,

whether with or without any other punishment, in respect of offences committed

by persons under the age seventeen years (19).

There has never been any specific statement of criminal policy in Nigeria.

There was, of course, in the July 1966 number of the magazine Drum the follo-

wing statement credited to the Federal Director of Prisons

“... The important

thing was, of course, to realise that the prison system in Nigeria as a whole

is purely reformatory and not punitive.

The aim is to make the prisoner more

29

While this statement lacks

useful to himself and to society on his release...

(13)

Ibid., s. 23.

(14)

Ibid., s

25.

(15)

Ibid., s. 28.

16)

A person apparently less than 9 years of age may neither be imprisoned nor

fined

s. 432 ot C.P.A. (Cap. 4

(17)

Ibid., s

11; see also ss. 419 and 424 of Criminal Procedure Act (Cap. 43).

(18)

Ibid., s. 20.

(19)

S. 429 of the C.P.A. (Cap. 43).

e gdgnaes

legislative authority, it can nevertheless be taken as an expression of the inten-

tion of the head of the Prisons Department to re-orientate the institutional as

well as he non-institutional treatment of offenders toward the goal of reforma-

tion rather than punishment.

It represents a movment away from the old theory

that the object of criminal punishment was to safeguard the government, to

maintain law and order and to ensure the general welfare of the citizens

as against laws-breakers.

The idea was clearly that the offender must be

taught that crime does not pay and that the community ought to be protected

by dealing with the criminal in a way that would deter others from committing

similar or, indeed, any other offences.

Despite the fact that there has not been an official government declaration

of a national policy on the end of criminal punishment, the practical execution

of policy within the prison has been undergoing a change based on the idea

that education of the offender is preferable to physical punishment; there is

a growing realisation that it is no longer true that “criminality involves a cha-

racter abnormality and that its treatment requires that a man should be brought

to an acceptance of himself and others.”

The better view emphasizes that

there is a need to bring about a change in the attitude of he great majority

of 'star’ prisoners and recidivists by means of a systematic and expert thera-

peutic treatment while undergoing their sentences.

The point is that prisoners

go to prison as a punishment, not for punishment.

This new theory and practice of penology will found to have been gai-

ning ground in most African countries, particularly since the end of the Second

World War.

Here in Nigeria, the Federal Military Government took the very

wise decision to bring all prisons and their staff, whether under local or

state government or not, under direct federal control and administration.

One

of the principal aims of the unification which began on April 1, 1968, is to

re-organise the various prison establishments in the country in such a way that

there should be uniformity of standards of treatment for all prisoners both when

they are inside and after they have left.

Among the specific innovations in

the prison reform being undertaken are

a)

Wider use of the open prison system which the very successful expe-

riment of the Kakuri open prison in one of the Northern States of Nigeria

has encouraged.

b) The use of the parole especially in the case of long-term sentences

of imprisonment so that the prisoners can be released for periods on their

words of honour that they will return to complete their sentences.

This system

should enable such prisoners not only to be re-united with their families and

friends, but also to visit normal workshops and factories engaged in the kinds

of trade and professions being taught within the prison gates.

c) The introduction, at least on an experimental basis, of the system of

suspended sentence whereby accused persons who have been duly convicted

of certain offences, the punishment of which does not exceed two years, may

have their sentences suspended until they should commit the same or similar

offence again when they could then be made to undergo a sentence which

— 31 —

is consecutive to the first one (20).

The advantage of this method of dealing

with the offender is that it gives him another chance to mend his ways and

so escape imprisonment especially technical or casual offences, in addition to

the benefit which the Government derives from the consequent easing of the

pressures of over-crowded prisons.

The suspended sentence must be clearly

distinguished from the binding over of an accused person in his own recogni-

sances which does not involve convicting an accused person before setting

him free initially on condition of good behaviour in the future (21).

d) Work sentences are also to be improved so that prisoners get better

returns for their labour whether in the factory or elsewhere on the basis of

improved remuneration which must perforce be paid to them only after their

final

release.

Apart from the advantage which will undoubtedly accrue to

the prisoners from this system, the institution also gains from it in reduced

maintenance and running costs.

Given certain conditions, the expenses of

board and lodging of the inmates might well be met through a well-organi-

sed system of work sentences.

e) Another initiative that may be taken is to ensure that there is a

greater use by the courts of fines as alternatives to terms of imprisonment in

Under s.

382

respect of many more offences than is the case at present.

of the Criminal Procedure Act (Cap. 43), a court may impose a fine in lieu

of imprisonment where it is given power under any written law to impose only

a term of imprisonment, provided that no written law prescribes a minimum

period of imprisonment.

When an accused person fails to pay such an

alternative fine, he may not be sentenced to more than two years' imprison-

Indeed,

ment, unless a long term is laid down for the particular offence (22).

there is a scholl of thought that minor infractions are better punished by

the imposition of fines than by the infliction of imprisonment.

In any case,

there should be a scrupulous avoidance of short-term sentences of imprison-

ment, for which fines should be sufficient penalties.

If fines are reasonable

in relation to the gravity of the offence, there is little doubt that most offenders

and their families would prefer to pay them rather than go to jail.

In Afri-

can eyes, fines may be regarded as he nearest equivalent to the compensa-

tion normally demanded under customary law.

f) The probation system is already in common use in Commonwealth

Africa.

(20)

The system of suspended sentence was first introduced into England by the

Criminal Justice Act, 1967, ss. 39-42.

(21)

Criminal Procedure Act provides as follows in s. 300

«On any summary

trial the court may, whether the complaint be dismissed or not, bind over the complainant

or defendant, or

oth or any o

them, with or without a surety or sureties, to be of

good behaviour,

and may order any person so bound, in default of compliance with

the order, to be

imprisoned for any term not exceeding three months, with or 'without

hard labour,

in

addition

to ony other punishment to which such person is liable. »

(22)

C.P.A

(Cap. 43), s

390

(3).

Payment by instalments

is permitted under

5

A court

may order a fine to be recovered by distress and,

in défault,

the

offender may be

sentenced to a term of imprisonment (s, 398).

— 332 —

Under the Nigerian Criminal Procedure Act (23), adult offenders may in

certain circumstances be conditionally released.

Where the charge against

an offender is proved to the satisfaction of a court, the judge may, having

regard to the character, antecedents, age, health, or mental condition of the

accused or of the trivial nature of the offence or to the extenuating circums-

tances

under

which the offence was

committed,

either dismiss the charge

against the accused or discharge him conditionally on his entering into a

recognizance, with or without sureties, to be of good behaviour and to appear

at any time during such period not exceeding three years as many be stated

in the order.

The court may in addition order the offender to pay such

damages for injury or compensation for loss, not exceeding £ 10 (ten pounds)

or any higher limit that may be stipulated in any enactment.

This is done by

the court, without proceeding to conviction, is it is deemed expediant to in-

flict any punishment, or any other than a nominal punishment, or to release

the offender on probation.

The court may also make an order revesting

Such an order

of

restitution

or restoring stolen property to the owner.

has the effect of a conviction (24).

Where an accused is ordered to enter

into a recognizance, he may be placed under the supervision of a probation

officer who, if he consents, may be named in the order, which may contain

additional conditions with respect to residence, abstention from intoxicating

liquor, and any other matters which the court may deem necessary for pre-

venting a repetition of the same offence or the commission of other offences.

The court must furnish the offender with a written notice stating in simple

language the conditions which he is required to observe (25).

Subject to any directions

of the court, the duties

of a probation

officer are

i)

to visit or receive reports on the person under his supervision at reaso-

nable intervals specified in the probation order or fixed by the probation

officer.

resides with the

It is otherwise if the person on probation

probation officer ;

ii)

to see that he observes the conditions of his recognizance ;

iii)

to report to the court as to his behaviour ;

iv)

to advise, assist, and befriend him and, when neccessary, to endeavour

to find him suitable employment (26).

The terms and conditions of a probation order may be varied if the

probation officer’s report warrants it : the recognizance may even be discharged

where the need arises.

Should a person on probation fail to observe any of

the vital conditions of his recognizance, he may be ordered to be apprehended

(23)

Cap. 43 of 1958 Edition of the Laws

(24)

S. 435.

(25)

S. 436,

(26)

S. 438.

e

)

35

and brought before the court to be dealt with as the court deems appro-

priate (27).

There is, however, a real need for the greater employment of probation

in African penology, if only because of its sociological and psychological

relevance to African societies.

Attached to each Ministry of Labour in most

African countries are the Social Welfare Departments which are responsible

for cases involving juvenile delinquency and various forms of deviant behaviour

in certain adults ; their role in the probation system and in relation to Remand

Homes, Borstal institutions and detention centres is indispensible to a proper

realisation of the aims and purposes of any modern system of social defence.

g) Government will give active consideration to the encouragement of the

formation of voluntary after-care-associations for ex-inmates of prisons and

other penal institutions throughout the country, so as to facilitate their rehabi-

litation and re-absorption into the community, including their obtaining gain-

ful employment.

There are already a number of such associations, but more

and better organised and better financed ones are urgently needed.

h) It is proposed to establish a Prisons Staff College which would compare

favourably with the existing Police College.

The curriculum should, in addition

to general prison duties, law and administration, also include psychology, socio-

logy and criminology, particularly for the promising senior officers who are

likely to be responsible for directing policies for the institutions and establish-

ments.

Unless such people are given the right orientation for the application

of the new ideas and practices of social defence, progress below may be quite

slow.

The foregoing developments in Nigeria are bound to be followed soon,

if not already adopted, elsewhere in Commonwealth Africa, because the pro-

blems and the inheritance in the sphere of penology are so often broadly

similar,

——

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5}

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NG

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(27)

S. 440.

3 —

XXth International Course in Criminology

on Non-Institutional Treatment of Offenders :

Concluding Resolution

The Nigeria Society of Criminology

—

Mindful of the present magnitude and the future gigantic dimensions

of the crime problem.

Il

Realising the enormity of the financial losses produced by criminal

activities.

1l

Appreciating that Institutional Treatment of Offenders is not always

the best method of treating offenders and is often too expensive.

v

Anxious to pursue its aims of promoting the study, dissemination and

advancement of Criminology, in

respect of which

it

has

held

the

XXth International Course in Criminology on Non-Institutional Treat-

ment of Offenders under the auspices of the Faculty of Law, University

of Lagos from Tuesday, August 4—Tuesday August 11, 1970.

RESOLVES

1)

That an Institute of Criminology be established, with immediate effect,

within the University of Lagos, and

2)

That the Federal Military Government and all the State Governments be

invited to implement, as early as may be, the progressive penal reform

measures recommended and adopted at the present Course.

ERRATA (1970, Vol. 9, N° 2)

A la page 649 :

s

=

le total de 1960, au paragraphe 3.4.4., doit étre le sui-

vant : 29 485 800 000 ;

Ay

Le total

de

étre

1969, pour les sommes a déduire, doit

de 29 169 400 000.

A la page 650 :

==

-

Le total du paragraphe 3.4.5., pour I'unnée 1969, doit

étre

de 28 903 500 000.

— 330 —