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American Journal of  
Society and Law ( AJSL)

Decolonizingthe Concept of  Penalsanction Under the Nigerian Criminal Law
Aminu Abbas Abubakar1*

Volume 2 Issue 2, Year 2023
ISSN: 2835-3277 (Online)

DOI: https://doi.org/10.54536/ajsl.v2i2.1475
https://journals.e-palli.com/home/index.php/ajsl

Article Information ABSTRACT

Received: March 29, 2023
Accepted: April 28, 2023
Published: May 03, 2023

The conscientious pursuit of  crime prevention is a worthy objective of  every criminal 
law and criminal justice system as a whole, and many evidences prove that law and order 
would break down in the absence of  the criminal justice system. Withmuchemphasis 
onpunishment,however, victims of  criminal offencesmore oftenbecome alienatedand end 
up getting immersed in a complex physical and psychological trauma under a criminal 
proceedingthat does not include them as a formal party. This paper presents adebate on 
whether the state is a better agent to pursue breaches of  individual rights such as murder, 
rape, burglary, and theft, which are tagged as criminal offences. Or is the individual victim 
better equipped to decide on taking on the case for justice through either retribution 
or compensation?The paper examines the concept of  punitive sanction throughthe 
postcolonial theory lens and argues forthe decolonization of  the coloniallyinherited criminal 
law and a shift towards a System in which the victim is capable of  being empowered by 
invoking processes that place him within proximity to criminal proceedings. This perspective 
questions the foundational assumption of  the State ordered punishmentas intrinsic to the 
functions of  the criminal justice system.There is a wide array of  potential methodologies 
for studies of  this nature, but this paper adopts a basic historical survey through secondary 
sources. The findings of  the paper reveal that the pursuit of  justice in all its nuanced forms 
will be much better served under a justice system that promotes the victim’s right to apply 
for compensation, damages and restitution in criminal cases through personal remedies.

Keywords
Criminal Law, Punishment, 
Deterrence, Justice System and 
Decolonization

1 Principal Partner: Expedient Solicitors, Nigeria
* Corresponding author’s e-mail: ibbukar@gmail.com

INTRODUCTION
The Criminal Justice Systemin Nigeria remains one of  
thevisible remnants of  colonial institutions rooted in 
the English common law. Inherited from the colonial 
system,the Criminal Justice system empowers the 
colonialist, and now the State, to unilaterally arrest, 
prosecute and punish criminal offenders (Otu,1999).
The victims of  criminal offences’role, at best, is one 
of  supplying the prosecutors with material evidence, 
after which lies the prosecutor’s responsibility to prove 
the case beyond a reasonable doubt. Often, at the end 
of  a lengthy and quite daunting criminal proceeding, the 
victims are left no closer to their original social, economic 
and psychological state, and the convicts are sent to 
detention centres only to add up to the overcrowded 
detention centres. This results in victims of  criminal 
offences ending up getting immersed in the complexities 
of  physical injury and psychological trauma under a 
justice system that does not include them as a formal 
party. This seemingly flawed justice system represents 
the English colonial justice system that continued to be 
revered under the Nigerian criminal justice system and 
viewed as a necessary and universal system for equitable 
social control without which society would inevitably 
erupt into chaos and a self-combustive crime scene. 
Despite being acolonial instrument oflegal sanctioning 
of  violence which works as a means to subdue colonized 
people into acceptingcolonialistdomination, criminal law 
is now erroneously assumed to be derived from people’s 
collective moral standard (Otu, 1999).
The present-day criminal justice systemin Nigeria was 

derived from the King’s mandate which forms an 
integral part of  the British colonial heritage in Nigeria 
(Chukkol, 2010). The inherited common law rules of  
procedure have shown an excessive veneration for the 
strictly regulated punitive justice that put vengeance 
over liability to repair the damage, therefore, leaving 
thevictims as well as courts exercising limited power 
to provide for restitution or compensation in matters 
designed as criminal offences.Theconcept of  punitive 
justicewas given impetus in postcolonial Nigeria through 
assumptions that the law is objective, and a product of  
collective public conscience rooted in morality.However, 
a victimor their relatives who are deprived materially 
because of  the incapacitation resulting from a crime, 
for example,will find it preposterous and a complete 
disappointment to be left with nothing and be informed 
that the State assumes the unilateral jurisdiction over the 
prosecution and punishment of  the offender (Chukkol, 
2010). This may only compound their agony and deprive 
them of  their right tovindicate and hold accountable the 
perpetrator of  the crime. While many victims continue 
to suffer from this alien punitive justice administered in 
Nigeria,otherlegal systems around the world continue to 
redefine the concept of  criminal justice and the personal 
right of  individuals to sue and be sued against.
In recent legislation on Criminal Justice System in 
Nigeria, there has been a notable innovation withthe 
introduction of  The Administrative of  Criminal Justice 
Act 2015 (ACJA). The legislation aims to promote 
efficient management of  Criminal Justice and victims’ 
compensation. The ACJA, in Section 319 provided that 

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the court may order the defendant or convict to pay a 
sum of  money as compensation to any person injured 
by the offence, regardless of  any fine or punishment 
imposed on the convict. In addition to any other penalty, 
the ACJA, in section 321, also gives the court the power 
to order restitution to give or return the property to 
the designated owner. These and other sections have 
brought relief  to victims of  crimes and have presented 
an opportunity to entrench some forms of  restorative 
justice standards and principles into the Nigerian criminal 
justice system. Despite this effort, however, the power 
to determine and pursue compensatory relief  is still not 
within the victim’s control and the entrenched idea of  
punitive sanction remains the number one target in all 
criminal proceedings. This does not represent justice to 
the victims of  criminal offences and therefore seems to 
be anachronistic and becoming more and more out of  
touch with the reality of  contemporary Nigerian society.

METHODOLOGY
There is a wide array of  potential methodologies for 
research of  this nature, but this paper adopts a qualitative 
research methodology which entails a review of  existing 
data related to the research topic.Theaim is to explore 
and analyse the concept of  punitive justice and its 
colonial rootin the Nigerian criminal law. The qualitative 
methodological approach serves the essential aim of  
identifying and collecting secondary data from different 
historical and legal sourcesto beused in constructing 
meanings and interpretations of  the changing roles of  the 
criminal justice in Nigeria and its application.Secondary 
sources used in the researchinclude books, journals, and 
other relevant publicationsprimarily available in libraries 
and online. These sources are used to evaluate the existing 
debates, commentaries, and controversies surrounding 
the research topic. 

LITERATURE REVIEW
The Colonial Root of  Criminal Law and the Myth of  
Collective Public Moral Standard
Before the development of  what today is strictly called 
criminal law, primitive societies maintain public interests 
and societal norms in a number of  ways. When a wrong is 
done, primitive society demands that someone be hurt as 
the infliction of  death and other forms of  vengeance were 
seen as a realization of  justice (Pound, 1921). However, 
with the evolution of  human civilization, men demanded 
a more civilized means of  attaining justice that involved 
putting down brute instincts (ibid). More reasoning was 
found in the religious doctrines that the evil man whose 
impiety was offensive to the gods must be put away as a 
sacrifice to the offended god who might else inflict his 
wrath upon the whole community (ibid). The newfound 
means of  religious devotion shaped the conditions 
in which the formative criminal law arises and thus 
determine in no small degree its subsequent evolution. 
Religious devotion was later replaced, and cases became 
administered by the sovereign authority through the 

magisterial power. The magisterial power to punish may 
be thought of  as deriving from the conception that the 
king is the father of  his country, and has jurisdiction over 
the individual members of  the community as the head of  
a patriarchal household over a dependent member of  that 
household (ibid). As the magisterial power and body of  
law attain sufficient development, the immediate securing 
of  societal interests as such becomes the task of  criminal 
law (ibid). 
The existing criminal justice system in Nigeria was 
derived from the English common law which forms an 
integral part of  the British colonial heritage in Nigeria. 
The primary goal of  the British colonialjustice system 
in Nigeria wasto facilitate colonial trade and civilization 
and therefore criminal justice largely exists to establish 
mandated societal norms and behaviours (Chukkol, 
2010). Any person who deviates from those norms 
must face the consequence both as a punishment and an 
example to make sure people behave in the way colonizers 
deem proper (Saleh-Hanna, 2008).This is not to suggest 
that the criminal justice system does not address social 
morality, however, it became a ‘visible symbol’ of  
colonialrepression and behavioural guidepost. Instead 
of  meeting pain with a truly reparative system that seeks 
the holistic restoration of  the community, the criminal 
justice was preoccupied with censuring code-breakers 
and disregarding the process of  restoring damaged and 
repairing broken social bonds (ibid). Not attempting to 
reinforcenative moral conducts and in some casesonly 
made to operate side by side with the colonial system 
of  justicesubject to thecolonialist test of  natural justice, 
equity and good conscience, is a testament against the 
collective moral foundation of  the colonial justice system.
In short, the bulk of  theinherited colonial Criminal 
justice system was nota product of  Nigeria’s people’s 
collective public conscience.By adoptingthose rules, the 
postcolonial society only reaffirms and makes concrete 
diffuse ideas about colonial standards and through such 
action, the idea of  criminal law as the “collective moral 
standard”wasbeen created and promoted as shared 
obligations (Smith &Natalier, 2005).
Beyond the rhetoric of  collective public moral 
standardsthat seek to establish a sound foundation for 
a durable social order, a look at the history of  most 
of  theNigerian people’s culture and traditions reveals 
a different story.Social control in most traditional 
Nigerian societies was exercised by the community 
and the family, not by the state (Saleh-Hanna, 2008). 
Reparation was always at the centre and not punishment. 
Any family member who violated social was in danger 
of  being ostracized by the community until reparations 
and remedies were undertaken by the family. In this 
way, the extended family kept a close watch over the 
activities of  its members to ensure good behaviour and 
compliance with societal norms, so as not to drag the 
name of  the family into the mud and conflict (Saleh-
Hanna, 2008). Contrary to the colonial punitive law, thus, 
at the heart of  the traditional justice system, it is the 

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restoration and reparation of  the victim, as well as the 
chances of  reintegration of  offenders. The restoration 
takes many forms, such as compensation or reparation 
which characterizes the early religious law concept that 
recognizes monetary payment as honourable and a better 
option to a blood feud, or the resort to vengeance. It 
provides the victim with a personal cause of  retribution 
and offers offenders redemption where money could be 
offered as compensation to avoid the mayhem of  the 
blood feud and other punitive sanctions. 
The collective moral standard found in criminal justice 
is nothing but legal constructs which only express 
the legislative orders that serve as the moribund and 
bureaucratic strategies of  political and economic control 
under the law rather than morality and social cohesion 
(Findlay 2000). Nothing has been said about criminal law 
protecting the shared societal obligations and sentiments, 
which is not to a large part applicable to non-criminal 
law. All offences affect the individual, and also affect 
the community (Hall, 1943), the difference is simply 
that a crime is anything which is called a crime, and a 
criminal penalty is simply the penalty provided for doing 
anything which has been given that name (Hart, 1958). 
In a proceeding concerning criminal offences against 
property such as stealing, there is hardly any special 
intrinsic characteristic of  criminal conduct distinguishing 
it from non-criminal conduct (Okonkwo & Naish, 
1980). Sentencing a woman to five years imprisonment 
for stealing two packages of  disposable diapers from a 
supermarket may sound unreasonable and unjustifiable 
even by moral standards, for it poses little danger or 
financial loss to the public but to the supermarket owner 
(Ashworth, 2010). The law of  torts, the law of  contracts, 
and almost every other branch of  private law that can be 
mentioned operate, too, with general directions prohibiting 
or requiring described types of  conduct, that are injurious 
to individuals and the general social order in the society 
(Okonkwo &Naish, 1980). To maintain social order and 
its moral standards, society is interested also in the due 
fulfilment of  contracts and most other civil activities. 

CriminalJustice and thenotion of  Public Social 
Orderin the Postcolonial State 
The conscientious pursuit of  crime prevention is a 
worthy objective of  every criminal law and criminal 
justice system as a whole, and there are many evidences 
that prove that law and order would break down in the 
absence of  the criminal justice system(Ashworth, 2010).
But is the state a better agent to pursue breaches of  
individual’s rights such as burglary, theft and murder, 
which are tagged as criminal offences? Or is the individual 
victim better equipped to decide on taking on the case 
for justice through either retribution or compensation? 
Justifications for assigning the central role to the state 
are often derived from the nebulous social contract 
theory, the essence of  which is that citizens give up their 
natural right to use force against those who attack their 
interests and hand it over to the state, in return for the 

state’s promise to protect them by maintaining law and 
order. Thistheory is regurgitatedin the postcolonial state 
withoutcareful assessment of  the legitimacy of  those 
colonial conceptsand standards thatnever considered the 
victims and their families, or victims and communities 
as stakeholders in the administration of  justice. With 
the decline of  the sovereign State and the increasing 
devolution of  state responsibility to private sectors, 
the social contract theory is increasingly becoming less 
relevant and therefore rubbishing the assumption that the 
state, like the king, reserves the right to prosecute and 
punish all social vices. This changing pattern of  societies 
has led many states, some in advanced countries such as 
the Netherlands, to change the role of  the victims and 
their families in criminal proceedings (Elder et al., 2022).
The introduction of  the victims’ remedies in Nigeria, 
under the ACJL 2015, demonstrates a slow, albeit, an 
essential paradigm shift towards a modern justice system 
in which the victim is capable of  being empowered by 
invoking processes that place them within proximity to 
the criminal justice process. The criminal justice system is 
beginning to evolve and embrace the place for personal 
remedy in criminally related offences. Punitive Justice, 
which is largely focused on punishing the offender and 
the power of  the state to control criminal prosecutions, 
is becoming obsolete for its undesirableeffect on victims’ 
right to participation in criminal justice. The introduction 
of  victims’ remedies in the Nigerian criminal justice 
system so far suggests an evolving role of  restorative 
justice which opens the doors to personal remedies that 
could help victims (Solomon &Nwankwoala, 2004). This 
evolution indicates a systemic response to the difficult 
challenge faced by victims of  criminal offences in colonial 
criminal justice.To recognize and empower victims to 
receive monetary and other compensatory damages for 
more personal property offences, such as theft, assault, 
battery, burglary, housebreaking, and homicide, denotes 
the shifting values from a colonialstructure to a justice 
system that involves the use of  private settlement where 
money or blood is exchanged for the infringement of  
a right. As a formidable alternative to punitive justice 
in Nigeria, a personal remedy for a criminal offence is 
becoming increasingly relevant in holding offenders 
accountable and empowering the victims in the 
reconciliation process. 

Discussion and Analysis
Decolonization and Reform Objective of  Criminal 
Law: Reparation over Vengeance
The conventional wisdom in the assigned role of  criminal 
law as maintained in the deterrence theories is that 
criminal liability is the strongest formal condemnation 
that society can inflict, and by inflicting pain and strong 
condemnation, society expects other people seeking to 
engage in similar offences shall be deterred (Cremona & 
Herring, 1998). To be ordered by a court to pay damages 
following a criminal offence, according to the deterrence 
notion, does not carry with it the same kind of  stigma and 

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moral lesson that it would be if  you had been found guilty 
of  a criminal offence and punished (ibid). Hence, the fear 
of  public stigma stands as the most effective tool that helps 
to strengthen the social order. However,a close analysis 
will reveal victims’ remedies in criminal proceedings 
can be more effective than punitive sanctions in many 
different ways (Cheh, 1998). Victims’ reparation offers a 
variety of  actions and damages for various types of  loss 
suffered where the victim occupies a central position in 
the final verdict of  the case (LaPorte, et al., 2003). It offers 
a panoply of  remedies including, compensatory damages, 
punitive damages, restitution, specific performance, 
injunctive relief, constructive trusts, abatement of  
nuisances, and forfeitures (Cheh,1990). This collection 
of  remedies provides the victim with an opportunity to 
vindicate his rights and, in so doing, empower the victim 
who is more concerned with the reparation of  his loss 
rather than determining blame (ibid). Given that the 
offender caused damage to the victim’s life or property, 
remedies empower the victim and provide more relief  
for the victim of  criminal offence and in many cases 
effectively aid the rehabilitation of  offenders.
Although punitive sanctions play an important role in 
deterring people from engaging in actions that harm 
others or society, victims’ reparation plays an even more 
important role in the moral judgments regarding justice, 
which, in the usual expression, signifies who should be 
compensated and who ought to bear losses (Hall, 1943). 
Compensatory damages are indeed very logical and 
conform to the deep-rooted African perception of  what 
justice is all about. In traditional African values, the victim 
or his family in the case of  murder, deserve damages 
and compensation for the loss of  life and property.
Relatives of  victims deprived materially because of  the 
incapacitation of  the victim, often express surprise and 
disappointment at how they could be left with nothing 
by the mere jailing of  the convict (Chukkol, 1988). A 
victim’s remedy can reduce the agony and empower the 
victim and his family. In cases involving injury, death, loss 
or damage, the court’s duty will be to consider making 
a compensation order in favour of  the victim or, in the 
case of  death, the victim’s family. This forms part of  the 
increasing recognition of  the needs, wishes and rights of  
the victims of  crime which does more than restitution 
found in the criminal justice system. 
Rather than the criminal actions solely intended to punish 
offenders by pointing to penal laws, persons injured by 
the criminal conduct of  others may seekremedyin the 
criminal proceeding (Cheh, 1998). In such situations, 
as in any other form of  a civil action, the victim pleads 
with the court and the judgment obtained in such action 
is enforced at the discretion of  the party whose right 
has been violated; therefore, it gives more room for 
settlement or adequate compensation (ibid). Despite the 
common fear that the offenders could have no assets 
from which to collect judgments, however, compensation 
can be distinguished just as the respective punishments 
were themselves differentiated in terms of  moral 

culpability. Individuals may bring many kinds of  “civil” 
enforcement of  judgement –suchas an injunction ororder 
for detention of  the defendant by the court. The same 
kinds of  unpleasant consequences, objectively considered, 
can be imposed upon the offender. The victim decides 
whether or not to undertake action against a perpetrator. 
Remedies, in many cases, are convenient and can provide 
the victim with an injunction compelling the victim to 
perform a certain action (Cheh, 1990).
Remedies have also proved to be highly effective and 
frequently used as alternatives to criminal prosecution 
through a variety of  statutory regimes that prescribe or 
prohibit certain conduct. Many public-related offences 
are increasingly dealt with through imposing monetary 
penalties or fines for violations. Examples include 
environmental and tax regulations. There are many 
reasons why governmental officials are embracing 
greater use of  remedies to respond to criminal or 
antisocial behaviour, which refutes the notion of  punitive 
sanction as the only civilizing force available to States. 
Law enforcement personnel long have recognized that 
the arrest and prosecution of  individuals, even on a 
massive scale, is often not enough to end organized 
crime or the operation of  illicit businesses (Cheh, 1990). 
Victims’ civil remedies are easier to use, more efficient, 
and less costly than criminal prosecutions. Remedies 
are a means to impose strict liability for offences and to 
identify behaviour as antisocial without invoking the full 
procedural and moral artillery of  a criminal case. In some 
misdemeanour cases, monetary penalties may seem more 
appropriate than a prosecution, including the case of  
motor vehicle parking and other minor traffic offences, 
presents for example. These and other regulated conduct 
which may never have been deemed criminal but always 
has been considered sufficiently undesirable to warrant 
some form of  deterrence can efficiently be addressed 
through remedies. 
The development of  new and innovative crime control 
policies in third-party civil suits also renders credibility 
to the assertion of  why victim reparations are more 
desirable and more efficient than punitive action(Martha, 
1998). A victim reparation can involve a negligent third 
party, and thus, help promote enhanced safety practices 
and encourage the exercise of  widespread concern over 
crime prevention and the implementation of  standard 
security measures such as the employment of  more security 
guards on premises, thereby reducing the occurrence of  
crime (ibid). The third-party civil actions tended not to 
characterize the offender as the sole site of  crime control 
but rather began to utilize the third party to help reduce 
crime by providing adequate premises security (ibid). This 
will revolutionize the legal system from one largely designed 
to respond to crimes and social conflicts, to one proactively 
working to avert criminal activities and conflicts. 
Nowhere is a victim reparation against a third party more 
pertinent than in sexual offences, if  victims of  sexual 
offences have the option of  pleadinga personalremedy 
against the criminal offender. Because criminal 

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prosecution for rape and other sexual offences is one 
of  the most complex legal battles often fraught with 
uncertainties,the technical and definitional complexity 
involved in a criminal prosecution can ruin a rather good 
case even when there is obvious physical and emotional 
harm caused. A remedy against the perpetrator of  sexual 
offences can result in different kinds of  damages being 
awarded to the victim and can strengthen the control 
against the offence in society. Again, in addition to the 
heavy damages awarded against the perpetrator of  the 
sexual offence, a third party could be held liable for reason 
of  negligence or failure to provide adequate security and 
protection for victims. The Roman Catholic Church, 
for example, had, on several incidences forced to settle 
allegations of  sexual abuse of  children by clergymen with 
hundreds of  dollars being paid as settlement. A victim 
remedy against offenders and relevant third parties will 
empower the victims and ensure more protection.
 
CONCLUSION
From the foregoing discussion, an overviewof  this paper 
is that the dominant role played by the State in regulating 
the course of  criminal justice has its root in the colonial 
system of  justice which created undesirable outcomes for 
the victims of  criminal offences. The departure from the 
concept of  the King or State being the assigned guardian 
of  the community where it provides and safeguards 
the welfare of  its citizenry makes the State no longer 
considered the sole guardian of  individuals, therefore, not 
deserve the prerogative to unilaterally serves as an agent 
to vindicate individual member’srights. The retributive 
nature of  criminal proceedings controlled by the state, 
which are more liable to sanction over and above 
compensation, has only limited usefulness to the victims, 
especially those offences against property, which enforced 
compensation in most cases is a sufficient sanction 
against an accused. The integration of  victim reparation 
into criminal proceedings is more likely to get people 
out of  the challenges in our current Criminal Justice 
System. Thus, the colonial concept of  punitive sanction 
in criminal offences taken to be the chief  end to control 
the community’s sense of  right and wrong has proved 
anachronistic in our contemporary reality.In addition 
to the apparent inefficiency of  punitive sanctions as 
deterrencein many cases, the real pains of  imprisonment 
include separation from family and friends, the loss of  
jobs and weakened homes. The paradigm shift proposed 
in this paper stresses repairing the damage caused by 
crime through victimreparationthat entails a panoply 
of  remedies including compensatory damages, punitive 
damages, restitution, specific performance, injunctive 
relief, constructive trusts, abatement of  nuisances, and 
forfeitures. The remedy provides the victim with an 

opportunity to vindicate his or her right and, in so doing, 
it provides empowerment. 

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