TRANSFER OF CONVICTED OFFENDERS (ENACTMENT AND ENFORCEMENT) ACT

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LAWS OF THE FEDERATION OF NIGERIA

TRANSFER OF CONVICTED OFFENDERS (ENACTMENT AND ENFORCEMENT) ACT, 

[EDITOR’S NOTE: This Act has been amended by the Transfer of Convicted Offenders (Enactment and Enforcement) (Amendment) Act 2013]

EXPLANATORY MEMORANDUM

This Act [which has been amended by the Transfer of Convicted Offenders (Enactment and Enforcement) (Amendment) Act, 2013] was enacted to give municipal effect to the Commonwealth Scheme on convicted offenders between Commonwealth Countries.

ARRANGEMENT OF SECTIONS

PART I – Enforcement of Act

1. Enforcement and power to apply Act by order: reciprocity.
2. Modification of existing legislation.

PART II – Transfer of convicted offenders

3. General principles.
4. Transfer of a convicted offender.
5. Conditions for transfer.
6. Obligation to furnish information.
7. Requests and replies.
8. Consent and verification.
9. Notification of decisions.
10. Effect of transfer for sentencing country.
11. Effect of transfer for administering country.
12. Continued enforcement.
13. Pardon, amnesty, commutation or review.
14. Termination of enforcement.
15. Information on enforcement.
16. Transit.
17. Costs.
18. Application.
19. Acceptance of Scheme and notification.
20. Interpretation.
21. Short title.

SCHEDULE – Countries in respect of which an order under section 1 of this Act are in force

TRANSFER OF CONVICTED OFFENDERS (ENACTMENT AND ENFORCEMENT) ACT

An Act to give municipal effect to the Commonwealth Scheme on convicted offenders between Commonwealth Countries.

[1988 No.5.]

[16th February, 1988]    [Commencement.]

PART I – Enforcement of Act

1. Enforcement and power to apply Act by order: reciprocity

(1)    As from the commencement of this Act the provisions of the Scheme for the Transfer of Convicted Offenders within the Commonwealth as are set out in this Act (in this Act referred to as the “Transfer Agreement”) shall, subject to this Act, have the full force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.

(2)    The provisions of this Act shall apply to every separate country within the Commonwealth, on the basis of reciprocity.

(3)    Accordingly, where a Transfer Agreement has been made between Nigeria and any other Commonwealth country for the transfer of convicted offenders, the President may, by order published in the Federal Gazette, apply the provisions of this Act to that other country.

(4)    An order made under subsection (3) of this section shall recite and embody the specific terms of the Transfer Agreement or may apply the provisions of this Act to the country subject to such conditions, exceptions and qualifications as may be specified in the Order.

(5)    While an order made under subsection (3) of this section is in force in respect of any country, this Act shall apply to that country subject to the provisions of the order and to the terms of the Transfer Agreement as recited in the text of such order.

(6)    The power to vary an order made under subsection (3) of this section shall include power, where the terms of the relevant Transfer Agreement has been varied, to amend the order to recite or embody those terms; and if the Transfer Agreement to which such an order relates is determined or otherwise ceases to have effect, the President shall forthwith revoke the order.

(7)    Every order made under subsection (3) of this section which applies this Act to any country shall include a provision inserting in the Schedule to this Act an entry consisting of the name of that country, the year of the statutory instrument containing the order, and where such order is varied or revoked, the varying or revoking order shall include an order deleting the relevant entry from that Schedule.

[Schedule.]

(8)    For the purposes of subsection (2) of this section, each of the following is a separate country, that is to say-

(a)    each sovereign and independent country within the Commonwealth together with any dependent territories which that country so designates; and

(b)    each country within the Commonwealth which, although not sovereign and independent is not designated for the purposes of paragraph (a) of this subsection.

2. Modification of existing legislation

In any matter to which this Act relates, the relevant provisions of any other law in force in Nigeria, including-

(a)    the Criminal Code and the Penal Code;

(b)    the Criminal Procedure Act, and the Criminal Procedure Code and any such similar law in force in any part of Nigeria; and

(c)    the Evidence Act,

shall be read with such modifications as to bring them into conformity with the provisions of this Act.

PART II – Transfer of convicted offenders

3. General principles

Any person convicted and sentenced to a term of imprisonment in [another] country (hereinafter referred to as “the sentencing country”) for an offence may be transferred in accordance with the provisions of this Act to another country (hereinafter in this Act referred to as “the administering country”) in order that he may serve the remainder of that sentence in the administering country.

4. Transfer of a convicted offender

(1)    A convicted offender to whom this Act applies shall be informed by the sentencing country of the substances of the provisions of this Act.

(2)    A convicted offender may only be transferred following a request either by the sentencing country or the administering country; but the convicted person may also apply for his own transfer and in doing so he may channel his application to either the sentencing or the administering country.

(3)    Where a convicted offender applies for his transfer, the country which receives that application shall, as soon as practicable, so inform the other country.

5. Conditions for transfer

(1)    A convicted offender may be transferred to the administering country under this Act only on the fulfilment of the following conditions, that is to say-

(a)    if the convicted offender-

(i)     is a citizen or national of the administering country;

(ii)    has, with the administering country, such close ties of the kind that may be recognised by the administering country as sufficient to warrant a transfer under this Act;

(b)     if the judgment is final under the laws of the sentencing country;

(c)    if at the time of receipt of the request for transfer the convicted offender still has to serve not less than six months of the sentence or if the sentence is indeterminate;

(d)    if the transfer is consented to by the convicted offender or, where in view of his age or his physical or mental condition one of the two countries considers it necessary that a person entitled to act on behalf of the convicted offender consents to the transfer; and

(e)    if the sentencing and administering countries mutually agree to the transfer.

(2)    In an exceptional case, both the sentencing and the administering countries may agree to a transfer notwithstanding that the time remaining to be served by the convicted offender is less than that specified under paragraph (c) of subsection (1) of this section.

(3)    For the purposes of sub-paragraph (i) of paragraph (a) of subsection (1) of this section and subject to section 28 of the Constitution of the Federal Republic of Nigeria, 1999, a person is a citizen of Nigeria if he falls within any of the conditions stipulated under sections 25 to 27 of the said Constitution.

6. Obligation to furnish information

(1)    In order to assist the administering country to take a decision on a request for a transfer under this Act, the sentencing country shall send to the administering country information and documents specified in subsection (2) of this section, unless either party has reached a decision not to consent to the transfer.

(2)    The information and documentation referred to in subsection (1) of this section are as follows–

(a)     the name, date and place of birth of the convicted offender;

(b)    the address (if any) of the convicted offender in the administering country;

(c)    a certified copy of the judgment and a copy or account of the law on which it is based;

(d)    a statement of the facts upon which the conviction and the sentence were based;

(e)    the nature, duration and date of the commencement of the sentence;

(f)     whenever appropriate, any medical or social reports on the convicted offender and any information concerning his medical treatment in the sentencing country and any recommendation for his further treatment in the administering country; and

(g)    any other information or documents which the administering country may specify as required in all cases to enable it to consider the possibility of transfer and to enable it to inform the convicted offender and the sentencing country of the full consequences of transfer for the convicted offender under the law of the administering country.

(3)    The administering country shall, if requested by the sentencing country, send to the sentencing country a document or statement indicating whether the convicted offender is a national of its country within the meaning of section 5 (l) (a) (i) of this Act.

(4)    All documents sent in support of an application for transfer under this Scheme shall be certified.

7. Requests and replies

(1)    Requests and applications for transfer and any replies thereto shall be made in writing.

(2)    All communications between the sentencing and the administering countries shall be conducted through the channels notified in pursuance of section 19 (2) of this Act.

8. Consent and verification

(1)    The sentencing country shall ensure that the convicted offender or a person authorised to act on his behalf under section 5 (1)  (d) of this Act acts voluntarily and in writing with full knowledge of the legal consequences thereof; and the procedure for giving such consent shall be in accordance with the law of the sentencing country.

(2)    The sentencing country shall afford to the administering country, every opportunity to verify that the consent is given in accordance with the provisions of subsection (1)  of this section.

9. Notification of decisions

A convicted offender, who has applied for a transfer, shall be informed in writing of any action taken by the sentencing country or the administering country, as well as of any decision taken by either country on such request for his transfer.

10. Effect of transfer for sentencing country

The enforcement of the sentence by the administering country shall, to the extent that it has been enforced, discharge that sentence in the sentencing country.

11. Effect of transfer for administering country

(1)    The competent authorities of the administering country shall continue the enforcement of the sentence immediately or through a court of administrative order under the conditions set out in section 12 of this Act.

(2)    Subject to the provisions of section 13 of this Act, the enforcement of the sentence shall, upon transfer, be governed by the law of the administering country which
alone shall be competent to take all appropriate decisions.

12. Continued enforcement

(1)    The administering country shall be bound by the legal nature and duration of the sentence as imposed by the sentence.

(2)    The administering country may, if its law requires, by court or administrative order adopt the sanction to a punishment or measure prescribed by its own law; so however that in so doing, the administering country shall ensure that-

(a)    the nature, punishment or measure so adopted shall, as far as possible, correspond with that imposed by the judgment of the sentencing country; and

(b)   the nature or duration of punishment so adopted does not aggravate the nature or duration of the sanctions imposed by the sentencing country.

13. Pardon, amnesty, commutation or review

(1)    Unless the sentencing and the administering countries otherwise agree, only the sentencing country may in accordance with its Constitution or other laws grant pardon, amnesty or commutation of the sentence of a transferred convicted offender.

(2)    Only the sentencing country may consider and decide on any application for the review of the judgment concerned.

14. Termination of enforcement

The administering country shall terminate enforcement of the sentence—

(a)    at the end of the term of the sentence; or

(b     as soon as it is informed by the sentencing country of any decision or measure as a result of which the sentence ceases to be enforceable.

15. Information on enforcement

(1)    The administering country shall notify the sentencing country-

(a)    when it considers the enforcement of the sentence to have been completed in accordance with section 14 of this Act; or

(b)    if the convicted offender escapes from custody before enforcement of the sentence has been completed as required by section 14 of this Act.

(2)    The sentencing country may at any time request a special report from the administering country concerning the enforcement of the sentence.

16. Transit

(1)    Each Commonwealth country shall afford reasonable co-operation to another Commonwealth country by facilitating the transit through its territory of convicted offenders who are being transferred between other countries pursuant to the Commonwealth Scheme for the Transfer of Convicted Offenders.

(2)    Where in the course of the transfer of a convicted offender it is necessary to go through the territory of any Commonwealth country, the country intending to make the transfer shall give advance notice of such transfer to all countries through which it is proposed to take the convicted offender.

17. Costs

The costs of the transfer of the convicted offender under this Act shall be borne by both the sentencing country and the administering country in such proportions as they may agree either generally or in regard to any particular transfer.

18. Application

The provisions of this Act shall apply to the enforcement of sentences imposed before as well as after the date when this Act comes into force.

19. Acceptance of Scheme and notification

(1)    Immediately after the commencement of this Act, the appropriate authority shall, through the diplomatic channel, notify the Commonwealth Secretary-General that the provisions of the Commonwealth Scheme for the Transfer of Convicted Offenders has come into force in Nigeria.

(2)    Accordingly, the President may, by order published in the Federal Gazette, designate a person or authority as the proper channel for communication under this Act.

(3)    Accordingly, the appropriate authority shall inform the Commonwealth Secretary-General of the person or authority designated under subsection (2) of this section as the proper channel for communication under this Act.

(4)    For the purposes of subsection (1)  of this section, the “appropriate authority” shall be the Minister of Foreign Affairs.

20. Interpretation

In this Act, unless the context otherwise requires–

“administering country” means the country to which a convicted offender may be or has been transferred in order to serve his remaining sentence;

“convicted offender” means a person upon whom a sentence has been imposed;

“judgment” means a decision or order of a court or tribunal imposing a sentence;

“sentence” means any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a determinate or indeterminate period of time in exercise of its criminal jurisdiction;

“sentencing country” means the country in which the sentence was imposed on the convicted offender who may be, or has been, transferred.

21. Short title

This Act may be cited as the Transfer of Convicted Offenders (Enactment and Enforcement) Act.

SCHEDULE – [Section 1 (7)]

Countries in respect of which an order under section 1 of this Act are in force 

TRANSFER OF CONVICTED OFFENDERS (ENACTMENT AND ENFORCEMENT) ACT

SUBSIDIARY LEGISLATION

 List of Subsidiary Legislation

1. Designation of Proper Channel for Communication Order.
2. Transfer of Convicted Offenders (Convention Countries) Order

DESIGNA TION OF PROPER CHANNEL FOR COMMUNICATION ORDER  – (under section 19 (2))

[23rd August, 1993] [ Commencement.]

1. Designation of the proper channel of designation

The Attorney-General of the Federation is hereby designated as the proper channel for communication for the purposes of the transfer of convicted offenders.

2. Citation

This Order may be cited as the Designation of Proper Channel for Communication Order.

TRANSFER OF CONVICTED OFFENDERS (CONVENTION COUNTRIES) ORDER  – (under section 1 (3))

[26th August, 1993]               [Commencement.]

1. Declaration of convention countries

The countries specified in the Schedule to this Order are hereby declared to be convention countries for the purposes of section 1 (2) of the Transfer of Convicted Offenders (Enactment and Enforcement) Act 1988.

2. Citation

This Order may be cited as the Transfer of Convicted Offenders (Convention Countries) Order 1993.

SCHEDULE – [Section 1.]

Countries to which this Schedule applies