Criminal Responsibility: Can A Nigerian Child Be Referred To As Ex-Convict?
By Hameed Ajibola Jimoh Esq.
Under the Merriam Webster on-line dictionary, ‘a convict’ is a person who has been found guilty of a crime and sent to prison’. And as a ‘verb’, to convict someone under the same dictionary means, among other meanings, ‘to prove that someone is guilty of a crime in a court of law’. Also, ‘Criminal sanction’ according to the Black’s Law Dictionary, Eighth Edition, is ‘a sanction attached to a criminal conviction, such as fine or restitution- Also termed penal sanction’.
This paper considers whether a Nigerian child can be referred to as ‘an ex-convict’ and this paper considers whether such child can be referred to as such at his maturity age based on his being found guilty of an offence at his childhood age?
‘A child’ by section 277 of the Child’s Rights Act, LFN, 2010 herein referred to as CRA and section 494(1) of the Administration of Criminal Justice Act, 2015-herein referred to as ACJA-‘means a person who has not attained the age of eighteen years’.
It is noteworthy that in considering criminal sanctions in Nigerian statutes, an offence has to be committed and the offender found guilty and convicted thereupon before criminal sanctions are made.
By section 2 of the Criminal Code Act – herein referred to as CCA – ‘An act or omission which renders the person doing the act or omission which renders the person doing the act or making the omission liable to punishment under this Code, or under any Act, or Law is called an offence’.
In which case, by section 3 of the Code, offences are of 3 kinds: felonies; misdemeanours and simple offences. Also see section 28 of the Penal Code (Northern States Federal Provision) Act Cap 345-herein referred to as PCA as well as section 494(1) of the ACJA and these definitions are retained in this paper for the purpose of section 494(2) ACJA.
However, by section 213(1) CRA, ‘A child who is accused of having committed an act such as is contemplated in section 209 of this Act, shall be tried in the court’.
And by section 213(2) CRA, the terms ‘conviction’ and ‘sentence’ shall not be used in relation to a child dealt with in the court and any reference in any enactment or other law to a person convicted, conviction or a sentence shall, in relation to child, be construed as including a reference to a person found guilty of an offence, or to a finding of guilt or to an order made upon such a finding as the case may be’.
It is hereby submitted by the writer of this paper, arising from this provision of section 213(2) CRA (supra) that a child cannot be termed as ‘an ex-convict’ rather, may be termed as ‘ex-offender’ or ‘previously found guilty of an offence’.
Furthermore and more so, by section 50 of the PCA, ‘no act is an offence which is done-(a) by a child under seven years of age; or (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’.
Also see section 30 of the CCA and by this CCA, a male person under the age of twelve years is presumed to be incapable of having carnal knowledge’.
It is submitted therefore, that consideration of criminal sanctions shall only be in relation to a child whom is above the age of seven years and under the age of eighteen years, except that a child under the age of 12 is criminally responsible for an act or omission which he had capacity to know that he ought not to do the act or make the omission. See section 50 of the PCA and section 30 of the CCA (supra).
Furthermore, Section 452(1) of the ACJA provides that ‘Where a child is alleged to have committed an offence, the provisions of the Child’s Rights Act shall apply’.
Also see section 264 (1)(b) of the ACJA. Also, by section 204 CRA, ‘No child shall be subjected to the criminal justice process or to criminal sanctions, but a child alleged to have committed an act which would constitute a criminal offence if he were an adult shall be subjected only to the child justice system and processes set out in this Act’.
However, it is submitted that the CRA is an Act of the National Assembly applicable only by virtue of the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as crimes not on the exclusive legislative list fall within the Residual legislative list of which only the States of the Federation have power to legislate on.
Therefore, it is submitted further, that the ACJA, which is subsequent to the CRA, notwithstanding the provision of section 274 CRA, shall be applicable to the Federal Capital Territory-herein referred to as FCT and other Federal Laws as appropriate, alongside the CRA, in criminal sanctions relating to a child offender in Nigeria.
See the case of: A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. where the Supreme Court held thus:
“Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list.
“The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list.
“The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws.
“The House of Assembly of a State has power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws.
“The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists”.
Also see the Preamble and section 2 of the ACJA. Though, almost all States of the Federation have adopted or enacted Child’s Rights Law with the content of the Child Right’s Act.
By section 221(1) CRA, ‘no child shall be ordered to be-(a) imprisoned; or (b) subjected to corporal punishment; or subjected to death penalty or have the death penalty recorded against him’.
However, section 222(1) and (2) CRA, provides for capital offences as an exception in the following words:
“Notwithstanding anything in this Act to the contrary, where a child is found to have attempted to commit treason, murder, robbery or manslaughter, court may order the child to be detained for such period as may be specified in the order and such child offender in relation to such place of detention, is by section 222(2) CRA (supra) deemed to be in legal custody.”
Also see section 405 and 401 of the ACJA and section 452(1) ACJA.
Furthermore, where a child commits offences which are not capital offences by law, section 223 CRA provides for the criminal sanctions of such a child offender thus:
223 (1) ‘where a child charged with an offence is tried by a court and the court is satisfied that the child actually committed the offence, the court shall take into consideration the manner in which, under the provisions of this Act, the case shall be dealt with namely, by …’
However, due to the long contents of this provision and shortage of space in this paper to accommodate same, it is recommended that the reader of this paper should very importantly, refer himself to this section under the CRA for details.
From the foregoing discussions, it is generally submitted by the writer of this paper, without prejudice to any other submissions afore-made in this paper, as follows:
Criminal sanctions are applicable to a child offender depending on whether the offence charged with and found guilty of is a capital offence or a non-capital offence.
In the case of a capital offence, the child offender is ordered or subjected only to life imprisonment or to such term as the court may deem fit appropriate in consideration of the principles in section 401 of the ACJA. See sections: 405 and 401 ACJA, 221 and 222 CRA (supra).
In the case of a non-capital offence, the child offender shall be dealt with in relation to the provisions in section 223 CRA. See section 452 ACJA.
Criminal sanction whether for capital or non-capital offence, is only applicable to a child above the age of 7 but under the age of 18, except in the case where a child above the age of 7 but under the age of 12 has knowledge and had the capacity to know that he ought not to do the act or make the omission at the time of commission of the offence or making the omission, in which case, criminal conviction shall be applicable to him. See sections: 30 CCA; 50 PCA; and 494 (2) ACJA.
A child under the age of 7 is not a child offender and can never be referred to as an ‘ex-offender’ or ‘previously found guilty of an offence’ under the law because, criminal sanctions cannot be applicable to him because, he is presumed not to be able to commit an offence under the law.
However, in the opinion of the writer of this paper, where he does a wrong which could have made a criminal sanction applicable to him if he were to be above that age or an adult, the court should consider his rehabilitation, welfare and protection rather than releasing him for his innocence under the law.
The ACJA is applicable to a child offender alongside the CRA where relevant notwithstanding the provision of section 274 CRA, as there are plethora of judicial precedent that where there are two statutory provisions of law on the same subject, the later prevails. Law is dynamic and should not be static. See the case of: A.G. Federation v A.G. Lagos State (supra).
Finally, whatever the criminal liability of the child at his childhood stage might be, such cannot be brought or used against him at his maturity age considering the provision of sections: 1, 8, 205 (especially subsection (3) paragraph (c) ) and 215 of the CRA.