The punishment theory

August 19, 2025 by Our Reporter

• By Ben Ijeoma Adigwe

The aim of criminal law is the punishment of the convicted offender. But one may ask what the aim of punishment is?

Generally speaking, there are five different reasons why punishment is meted out to those who have breached societal laws.

These are:

• Retribution or Legal revenge;
• Restraining the offender;
• Reforming the offender;
• Deterrence and
• Restitution.

Retribution or legal revenge is the oldest theory behind punishment.

One finds this deeply rooted in the Mosaic Law, which demands an eye for an eye and a tooth for a tooth.

This Mosaic Law was based on the Hammurabi Code. Retribution as an aim of criminal punishment can also be seen in the Italian tradition of Vendetta. Under this theory, society takes over the carrying out of vengeance on behalf of the injured.

Punishment is seen as an accepted outlet for the revenge emotion, as marriage provides a socially accepted outlet for sexual appetite.

By punishment under this aim, the indignant feelings of society are relieved.

This theory of punishment has been criticised as backwards-looking, resting only upon the foundation of vindictive justice.

Plato and Thomas Hobbes, in Leviathan, criticised this theory of punishment, as it serves no useful purpose.

In the deterrence theory, the penalty is regarded not as an end in itself but a means of attaining an end, namely, frightening others who may try to emulate the criminal.

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Another angle to this theory is that the individual punished would be deterred from committing similar crimes in the future.

This theory has also attracted a lot of criticism, the chief of them being that the deterrent effect of punishment is not provable.

These critics point out that those criminals who are punished often recidivate and that the rate of recidivism is very high.

These critics also argue that crimes are often not the outcome of a rational weighing up of the chance of detection and the threat of punishment.

In fact, in Nigeria, where public executions are held, there have been reports of major theft taking place on the execution ground.

In one such case, the motorbike of one excited spectator was stolen from where he tethered it, even while the execution was still going on.

In the restraint theory, the criminal should be removed from society and be put where he can do no harm, especially when he has been shown to possess a criminal propensity.

Otherwise, we have a situation akin to where a wild animal is allowed to roam at will in the city streets.

In the fourth theory behind criminal punishment, which is that of reforming or rehabilitating the offender, the exponents say that the lawmakers should identify the social causes of crime and eliminate them rather than looking at just the criminal.

This theory is more generally accepted among modern thinkers and criminologists.

Here, the attitude of the offender is transformed so that he will voluntarily refrain from offending again.

One of the most notable methods of reform is probation, where the only inconvenience imposed on the convict is that he is under the general supervision of a probation officer.

This theory of punishment, though widely used and highly developed in developed countries, from my experience, is highly neglected in this part of the world. Our prisons, now called custodial centres, are sometimes not at their best.

There are some which were built as far back as in 1852 and are still being used today without much modification.

Most of these centres have three times more people than the normal inmates initially contemplated for such centres, as at the time they were built.

The late erudite and dogged Nigerian lawyer Chief Gani Fawehinmi (Senior Advocate of Nigeria) was once an inmate in one of such centres.

With the austere living conditions in the country, such convicts are in for a hard time. Their meals are so poor and small in quantity.

Inmates who are sent there often mingle with more hardened and experienced criminals, and they come out worse criminals than when they went in.

In Nonso Abiamuwe vs. the State, the accused, who was a young person, was charged with defiling a child of five years.

The child, after confirming that she understood the nature of an oath, testified as to how the incident happened. Her mother also testified as well as her father.

The doctor who examined the prosecutrix also testified, as well as the Investigative Police Officer (I.P.O). Thereafter, the accused and his father testified. He denied the charge while his father alleged that the parents of the prosecutrix had only pressed the charges against the boy because he refused to succumb to their monetary demands. It was a fiercely argued case.

The young accused was convicted and sentenced to four years’ imprisonment without an option of fine. I was shocked at the severity of the punishment for the young, promising student, notwithstanding his adventurous attempt in crime. Even the wonderful allocutus of his intelligent defence counsel was ignored.

I felt a bit sad, and when I glanced at the young, innocent, remorseful face of the boy in the dock, my sadness turned into guilt and pity.

I remember whispering to the defence counsel and my learned friend, Austin Aziken Esq, who was seated beside me, how I felt and that I was fed up with the prosecution.

He was also not happy and told me in plain terms that he did not envy being in my shoes. The punishment in this case was purely revengeful, definitely not the type I had in contemplation while prosecuting him.

For a promising young man to be sentenced to an institution, which then could not boast of a decent meal, with little or no healthcare, a garrison of hardened criminals was definitely not my idea of punishment.

There were a lot of options open to the court. It could impose a fine even when the law creating the offence does not mention that. He could also have imposed a sentence of whipping on him.

The fifth reason for punishment is restitution, which is where the court makes an order that the criminal defendant pay the victim of the crime for any harm suffered by them.

Restitution could be for physical injuries, loss of property or money. Restitution prevents crime by punishing the accused financially.

The Nigerian Correctional Service Act 2019 makes provisions for restorative justice measures.

The Administration of Criminal Justice Act, 2015, provides instances where the court can make an order for restitution or compensation to the victims of crime. Under section 401(2) of the Act, the courts are enjoined to have it in mind, while determining sentence, amongst other things, the objective of restitution and compensation of the victim or family of the victim of the offence.

Under part 28 of the Act, which deals with plea bargains, provisions are made for compensation and a restitution order. The Violence Against Persons (Prohibition) Act 2015, which expanded the meaning and scope of rape in Nigeria, makes provisions for compensation to victims of violence as the court may deem fit in the circumstances.

The oldest of the theories of punishment is retribution, and it is the most denigrated by modern thinkers all over the world.

As stated earlier, it is still found in our laws. The greatest tribute to retribution as a theory of punishment was enacted during the early years of the fourth republic in the Northern Nigerian state of Zamfara in the case of a young man, Mallam Jangedi, charged with stealing a cow.

He was convicted of the offence under Sharia law, which was invoked by the Government of Zamfara State. The sentence of the court against the accused under that law, believe it or not, was that his hand be amputated.

Despite a large public outcry at such a monstrous sentence, the accused person’s hand was eventually amputated in an operation conducted by a medical officer in the state who, apparently, had subscribed at his graduation to the Hippocratic Oath.

In my view it was the height of barbarism. One commentator from America said it was very uninspiring.

• Adigwe (www.benadigwe.com) is  a lawyer.