Some legal practitioners in Lagos have argued that the punishment for rape is prescribed by statute and therefore cannot be arbitrarily altered by the courts.
They stated that when a law lays down penalties for a capital offence, the courts must adhere to it.
The lawyers were reacting to arguments that courts have discretion to reduce penalties for capital offences in some cases.
One of the lawyers and social critic, Mr Spurgeon Ataene, said that although the criminal and penal codes stipulated punishments for such offences, they were not like the constitution, which could not be altered without due parliamentary process.
According to him, these laws are adapted for the benefit of the states, which made them.
“The same states have inwardly reviewed the efficacy of such laws and found that the sentences of defilement, or even murder, can be adjusted when there appears to be a degree of remorse from the defendant.
“Plea bargain therefore comes in to give a second chance to the offender, by giving him or her lesser term than prescribed by law,” he said.
Ataene noted that this action was backed by law, like the Administration of Criminal Justice Law of Lagos State 2015, as well as the laws of other states.
He added that if anyone was charged with an offence that carried capital punishment or life imprisonment, the state and the courts were empowered to accept plea bargain agreement reached by the offender.
“This curbs recidivism if a monitoring system is established by all tiers of government, to ensure this,” he said.
On his part, the convener, Fight Against Corruption in the Judiciary (FIACIJ), Mr Bayo Akinlade, said that the statute defined the punishment for an offence.
According to him, where the law has laid down specific penalties for offenders, the court is duty bound to follow such guidelines.
He, however, noted that there would only be exceptions, where such laws provided for factors that could enable the court alter or reduce the penalties.
“Courts cannot generally give a lesser sentence than what the law prescribed, except there are mitigating factors which have been outlined in the sentencing guidelines.
“In the crime of rape, the courts will always give the sentence as prescribed by law, if the defendant is found guilty,” he said.
Similarly, Mr Anthony Ali, former Chairman of the Nigerian Bar Association Young Lawyers Forum (NBA-YLF), Asaba branch, stated that under Section 358 of the Criminal Law of Delta State 2006, rape carries a penalty of life imprisonment.
He, however, recalled a disturbing case of Lucky v. State, which he said, had continued to raise serious debate in the Nigerian criminal jurisprudence, on whether courts could lawfully reduce mandatory sentence prescribed by statute.
According to him, the appellant was convicted for raping an 11-year-old girl, whose medical evidence confirmed forceful penetration and severe injuries.
He noted that the trial court had, however, imposed only five years’ imprisonment with hard labour, or an option of a ₦300,000 fine, after allocutus.
Aki argued that Section 30 of the Criminal Code and Section 39 of the Penal Code clearly establish that a child of that age cannot legally consent to sexual intercourse.
According to him, even though the law allows for mitigating factors during sentencing, same should not erode the aim of punishment, specifically with regards to defilement of minors.
“Section 311 of the Administration of Criminal Justice Act 2015 allows consideration of mitigating factors during sentencing, but such discretion should not override mandatory statutory punishment, for grave offences like child rape,” he said.
Another lawyer, Mrs Fortune Ezikeoha, argued that rape and child molestation had become grave societal ills, randomly placed currently, calling for rapt attention.
She noted that the punishment for such offences must serve to deter others, otherwise it loses its purpose.
“Recent developments in Nigeria’s criminal justice system especially under the Violence Against Persons (Prohibition) Act 2015 and increasing public demand for stricter sanctions for rape, shows that sentencing must reflect deterrence and protection,” she said.
