Introduction

Recall that on 28 August, 2024, the internet was buzzled with the news of Goodluck Bison, a 15 year-old boy who was taken into custody by the military for an alleged battering and raping a 14 year-old girl to the point of death in Ebonyi State. It was alleged that he forcefully entered into the premises of his neighbour by tearing the net of their window, and saw the victim asleep. He snuck into the victim’s kitchen, picked up a pestle, entered into the victim’s room. He allegedly hit her with the pestle and raped her while she was in bed. The hullabaloo caught the attention of the members of the community who thought there had been a thief in the house, when the victim’s door was opened, she was found lying on the floor with blood gushing through her ears.

In view of the above, emotions and comments has poured in from all sphere of life, some suggesting that the alleged culprit should be put away from society for life for such a crime, others suggested that he should be rehabilitated.It is pertinent to note, that at the time of this write-up, the suspect has not been charged to court.

In this regard, while the acts is heinous and condemnable, the writer would base his opinion on the points of law. The basis of the criminal justice system is the punishment of offenders on behalf of the state, this punishment comes in some many ways. Thus when a crime is established, punishment follows suit, either by conviction or by other means as may be stipulated by the court, that’s why, Okonkwo sees punishment simpliciter as the object of criminal law. The existence of crime and punishment is a reality of human existence.

For a crime to be established, it must be written down and its punishment spelt out, this is the purport of the provision in section 36(12) of the 1999 Constitution (as amended) reproduced herein:

Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law; and in this subjection, a written law refers to an Act of the National Assembly or a Law of a State, or any subsidiary legislation or instrument under the provisions of a law.

This was the reason, the court in Aoko v Fagbemi (1961) 1 All N.L.R 400, declined jurisdiction on a charge of adultery because adultery is not one of the offences in Ciminal Code in the Southern Nigeria, this same attitude was maintained in Udokwu v Onugha (1963) 7 EN. L.R.1

In the case of young Goodluck, has he committed a crime? Well, it’s the court that determines, at the moment, he is innocent until proven guilty, section 36(5) of the 1999 Constitution. Again, by the virtue of our laws, his entitled to fair trail, in section 36(4) the constitution provides that whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, entitled to a fair hearing in public within a reasonable time by a court or tribunal established by law. Consequently, Master Goodluck is innocent until otherwise is proven, someone might say, is rape and battery not an offence under our laws?

The answer is in the affirmative, in section 357 and 358 of the Criminal Code provides for the offence of rape which it defines as having unlawful carnal knowledge of a woman or girl, without her consent, or with consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear or harm, or by means of false act, or, in case of a married woman, by impersonating her husband. The striking difference between assault and battery is the application of actual force in the latter, see section 252 of criminal code, and R v St George (1840) 173 ER 921-8 However, the onus of proof lies with the prosecutor to prove beyond reasonable doubt that the alleged offences against master Goodluck was in fact committed by him with his mens rea intact.

Furthermore, if proven guilty, should master Goodluck be sent away for life?

It is imperative to note that prison sentence is not the only available punishment in under our criminal justice system, they are five main justification such as retribution, incapacitation, deterrence, rehabilitation and reparation. The concern of the writer is prison sentence or incapacitation. The proponders of this school, are of the view that the State has a duty to protect the public from future wrongs or harm, such protection can be afforded through permanent incarceration or incapacitation, to prevent future crimes by disabling the offender’s liberty, by sentencing to prison. The most extreme form of incapacitation is the punishment b y death (death penalty).

On the other hand, rehabilitation, is that punishment can prevent future crime by reforming the individual offender’s behaviour. Rehabilitation may involve education, counselling, intervention programmes or skills training. The behavioral premise of this theory of punishment is that criminal behaviour is not rational choice, but determined by social pressures, psychological difficulties or situational problems of various kinds.

Flowing from the fact of the allegations, master Goodluck is a child, thus the Child Rights Act in section 277 defines a child as a person who has not attained the age of eighteen years, hence the primary law that governs the kinds of crime is the Children and Young Persons Act (CYPA) , which defines a child as a person below the age of seventeen (17) years. Under the Act, if a juvenile is found guilty of a crime, the juvenile court may impose probation, fines, community service, placement in detention centre, incarceration in a prison, however, the type of sentence to impose will depend on the severity of the crime. Importantly, the CYPA discourages prison sentence or incarceration of juveniles, hence advocates for rehabilitation in order not to defeat its purpose. The Child’s Rights Act 2003 provides that “No child shall be ordered to be imprisoned, even when his found guilty of an offence” same provision is incorporated in section 11 of Children and Young Persons Act. Section 12 and 13 of the Act emphatically, provides that “sentence of death shall not be pronounced or recorded against offender who had not attained the age of 17 years. According to Chinazor Umeobika, he noted that given the mental and physical immaturity of children, they were not to be equated with adults. To her, the law provides that a child under seven is not criminally responsible for any act or omission, and a child under the age of 12 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 they had the capacity to know that they ought not to do the act or make the omission, section 30 of the Criminal Code.

Overall, the intendment of the Child Rights Act, Children and Young Persons Act is to protect and rehabilitate the child offender.

Conclusively, one cannot divorce the fact that the alleged crime is against humanity, although the reason for such deviant behaviour could be due to the psychological problems common to this age and also to the prevailing social and home problems, as such, the alleged offender, master Goodluck deserve rehabilitation irrespective what the act might be in fulfillment of the Child Rights Act 2003 and Children and Young Persons Act 1958.

By Moses Chukwudi Agu LL.B