Ms. B was arrested in 2023 on allegations of fraud, not because she was accused of committing the offence herself, but because her boyfriend was the primary subject of the investigation and certain disputed transactions had passed through her bank account.

That tenuous financial link was sufficient for investigative and prosecutorial authorities to arrest her, drawing her into conflict with the criminal justice system. She was arrested, charged, and remanded in custody despite not being the primary target of the investigation or prosecution. More troubling still, she was pregnant at the time.

No assessment of dependency was conducted. There was no inquiry into caregiver vulnerability, no evaluation of her pregnancy, and no consideration of alternatives to detention. She was treated as a procedural subject, not a rights-bearing individual situated within a web of dependency and care.

Ms. B went into labour while in custody. She delivered her child behind bars, not as a convicted offender serving a sentence, but as an awaiting-trial detainee, constitutionally entitled to the presumption of innocence.

Her detention did not end because a court determined she was not guilty or that her detention was an abuse of prosecutorial procedure.  It ended only when her parents were able to mobilise resources to restitute the money in question.

This is not an isolated incident. Across Nigeria’s correctional facilities are numerous primary caregivers whose incarceration disables them from fulfilling caregiving obligations to their dependents. Their detention produces invisible victims in the form of children whose welfare is compromised not by judicial determination, but by systemic indifference.

Even where caregivers are appropriately convicted, modern developments in the law on sentencing, and best practices in the administration of criminal justice dictate that courts consider alternative measures to custodial sentencing as much as possible.

Sentencing through a child-rights lens: the Kenyan example

In a recent High Court decision in Kenya, custodial sentences imposed on three women with infants and dependent children were set aside and replaced with non-custodial sanctions. The court’s reasoning was not framed in terms of sympathy or discretionary mercy, but as rights-based adjudication.

The judgment rested on three core principles:

1. Children are independent rights-holders and must not bear punishment for parental wrongdoing.

2. Prisons are structurally incompatible with infant development, lacking the safety, facilities, and environment required for early childhood welfare.

3. Where non-custodial measures exist in law, imprisonment is not a neutral choice but a harmful policy decision with foreseeable and avoidable social consequences.

The ruling reframed sentencing as a multi-subject exercise. The offender is no longer the sole legal subject of sentencing; innocent dependents affected by the sentence must also be considered.

Comparative Analysis: South Africa’s S v M

This reasoning closely aligns with South African constitutional jurisprudence, most notably the Constitutional Court decision in S v M.

In that case, the Court held that where an accused person is a primary caregiver, sentencing courts are under a constitutional obligation to treat the best interests of the child as a paramount consideration. Imprisonment was substituted with correctional supervision precisely because the original sentencing process had failed to adequately account for the welfare of the children involved.

The doctrinal significance of S v M is profound:

• It transforms the “best interests of the child” from an abstract moral principle into a binding sentencing constraint.

• It reframes incarceration as a decision with third-party victims, not merely a sanction imposed on an offender.

• It establishes that judicial discretion must be structured by child-impact analysis, not exercised in isolation.

Taken together with the Kenyan ruling, a clear continental jurisprudential pattern emerges: caregiver sentencing is no longer morally discretionary—it is legally structured.

Nigeria’s legal position: the tools already exist

Nigeria does not lack the legal framework required to reach similar outcomes.

The Administration of Criminal Justice Act (ACJA) 2015 already provides a comprehensive statutory architecture for non-custodial responses, including:

• Probation

• Community service

• Suspended sentences

• Restitution and compensation

• Restorative justice measures

In parallel, the Child Rights Act 2003 and constitutional norms embed the best-interests-of-the-child principle as a governing standard in all state action affecting children.

Doctrinally, therefore, the Nigerian position is clear:

There is no legal impediment to substituting custodial sentences with probation or other non-custodial measures for primary caregivers where imprisonment would foreseeably harm dependent children.

What is missing is not law, but a purposive interpretive posture by prosecuting authorities and the judiciary.

Interpreting the ACJA through a continental lens

Drawing from Kenyan and South African jurisprudence, the ACJA can be applied through a structured framework:

(a) Child-impact assessment as a sentencing requirement

Sentencing should mandatorily inquire into:

• Caregiver status

• Dependency relationships

• Ages of children

• Exclusivity of caregiving

• Availability of alternative care

• Developmental vulnerability

This shifts sentencing from offence-only analysis to social-impact adjudication.

(b) Proportionality beyond the offender

Punishment must be proportionate not only to the offence, but also to its collateral social harm. Where imprisonment imposes severe, foreseeable harm on innocent children and non-custodial measures can satisfy penal objectives, custody becomes disproportionate—particularly in light of the ACJA’s corrective philosophy.

(c) Probation as a corrective instrument, not leniency

Probation is often dismissed as excessive leniency. Under the ACJA, it should instead be understood as a legitimate corrective mechanism when applied proportionately and purposively.

Structured supervision, rehabilitation, and community reintegration are not acts of mercy; they are crime-prevention tools that promote social stability and reduce recidivism.

Structural implications for Nigeria’s criminal justice system

Adopting this interpretive approach would yield systemic benefits, including:

• Reduction in prison overcrowding

• Enhanced protection of child welfare

• Improved human rights compliance

• Strengthened the legitimacy of correctional institutions

• Alignment with continental jurisprudence

• Better long-term social outcomes

More fundamentally, it would re-anchor Nigeria’s criminal justice system in developmental justice rather than symbolic punishment.

This shift requires no legislative amendment. It demands interpretive courage, judicial leadership, and institutional commitment to the purposes already embedded in the ACJA.

In this sense, Kenya and South Africa do not offer Nigeria a new legal paradigm. Rather, they demonstrate what principled interpretation looks like when courts are willing to see sentencing beyond the need for punishment, taking into account all subjects of the justice process.