Avant de nous engager dans les discussions qui feront l'objet de ces deux journées scientifiques, il conviendrait de consacrer un moment à réfléchir sur la signication exacte des notions qui seront l'objet de nos débats.

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 legislation 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.

L'histoire de l'humanité est une histoire sanglante. Un fait ne laisse pas, toutefois, de susciter un certain étonnement : alors que la violence individuelle apparaît d'emblée comme un crime impardonnable, la violence collective est le plus souvent excusée et même glorifiée. Le meurtre déclenche une réprobation immédiate et celui qui le commet échappe difficilement à une répression impitoyable. Par contre, la révolution voit sa légitimation suivre de près son triomphe et la guerre semble nantie d'une dignité morale qui fait appel aux plus hautes vertus du citoyen dès que sa société est en cause.

“Development takes place on a foundation of law and order, and when crime is present, its toll is not limited to the individual victim. By hampering economic development it represents a substantial and long term cost to the entire community.” (1)

C'est un immense honneur que vous m'avez accordé que de m'inviter à parler aujourd'hui dans votre Société, en me décernant, ainsi qu'à mon éminent collègue, le professeur Denis Szabo, cette médaille placée sous l'invocation de Cesare Beccaria.

Depuis quelques décennies, d'importantes recherches en psychologie du comportement visent à approfondir nos connaissances de substratum biopsychologique commun à l'homme et à l'animal. Dans le monde animal, la psychologie comparée a décrit certaines conduites instinctives spécifiques, notamment chez les oiseaux et les mammifères. Des observations analogues ont été faites sur le plan humain, en dépit des difficultés inhérentes à de telles recherches et en tenant compte du fait qu'elles doivent être interprétées avec un grande prudence.

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 environment, so far he has not eliminated crime. There is nothing more permanent in the social organization than the prison budget : “good year, bad year, a certain number of individuals are locked up behind bars,” said Quetelet as far back as the middle of the XlXth 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 philosophy of Jean-Jacques Rousseau, whose counterpart in the field of biology was Darwin and in ihe 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 pathological 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.

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 treatment 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 spontaneous combustion, the inmates are more available to the influence of staff values. Unfortunately for therapeutic mystification however what the hard evidence suggests, as I shall show, is that inmates are merely temporarily making the most of more pleasant conditions. Their basic attitudes remain unaffected.

« Decidme cuál es el sistema penitenciario de un pueblo, y os diré cuál es su justicia. »

Esta aseveración de la notable escritora, socióloga-penal, precursora del penitenciarismo científico, Concepción Arenal, fue lanzada ya en el pasado siglo, desafiando la acción de los hombres de conciencia y responsabilidad, ante las graves lagunas, que todavía hoy, minan y ensombrecen los regímenes de aplicación de pena.

Although I wish to deal in this paper with possible alternatives to imprisonment, I will in effect be dealing with the broader question : toward what kind of penal system ought we to be working ? I will discuss alternatives to 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).

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 in as much 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 approach 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).

September 30, 1965 is widely known as the date of the abortive communist coup in Indonesia. The following year is then the beginning of a new administration often referred to as the “New Order”. It is often said that the major task of this administration is to “purify” the organization of the executive power, the machinery of justice, and the legislative in which authoritarian elements were systematically ingrained.

The Institute of Criminology at the University of Indonesia was founded in 1948 on the initiative of Prof. Mr. W.F.C. Van Hattum. Van Hattum was at that time professor of Criminal Procedure and Criminology at the University of Indonesia.

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 methodology and techniques of research. We needed so badly some basic 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.

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 but also for harsher and what they regard as more deterrent punishment. Not 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. I 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 State of Nigeria still born Homicide by Meckless or Dangerous Driving (Summary Trial and Punishment) Edict, 1968 (2), prescribing a minimum of ten years and a maximum of life imprisonment for causing death either by reckless or dangerous driving of a motor vehicle has not led to any decrease in the rate of incidents of that crime.

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 offender's guilt. The police still have the added task of demonstrating, through credible witnesses and by means of admissible testimony the guilt of the accused 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 before it.