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The History and Sources of the Nigerian Criminal Laws: How we ended up with Two Codes

In Nigeria today, we have two distinct but simultaneously operating principal codes for the determination of crimes in the country. A code is a statute that largely covers the whole of a particular area of law. The Criminal Code operates in the southern region of the country, while the Penal code operates in the Northern region. This article illuminates the development of the Nigerian criminal laws, as well as its sources.

Prior to the involvement of Colonial masters in the ‘Nigerian’ political system, the spectrum of land that is now known as Nigeria was occupied by peoples who had their diverse ways of dealing with public offences. It is noteworthy that a society without laws will ultimately culminate in administrative anarchy and interpersonal chaos.

The ethnic groups we have known to be part of Nigeria had customary laws that sufficed as a recognizable way of dealing with dissenters. These laws were largely unwritten, apart from the Northern Moslem community, which operated written laws under different structures. A major one among these structures was the Maliki School.

The first interference from the Western world with the customary criminal structure was in 1863, when the Common Criminal Laws were introduced to the Colony of Lagos. No other unique law existed in other territories, but for ordinances enacted at specific times to deal with specific issues. This introduced common law was difficult to obey. It was unwritten and unascertainable.

In 1904, the colonial system under the administration of Lord Frederick Lugard introduced a Criminal Code to the Northern region of Nigeria. Thus, making a tripartite criminal law system in the country, wherein the English Criminal Law obtained in Lagos, the Criminal Code in the North, and indigenous rules in the South. The Criminal code became applicable in the whole of Nigeria in 1916, after the Northern and Southern Protectorates were amalgamated in 1914.

The provision of Section 4 of this code was its major delinquency. This section allowed Native courts to continue in the administration of justice with the use of Native laws. This frustrated the functionality of the code, as different regions could still apply their native laws and archaic systems of punishing convicted offenders.

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The section read, “No person shall be liable to be tried or punished in any court in Nigeria, other than a native tribunal, for any offence except under the express provision of the code or some other ordinance or some law or some order-in-council made by his majesty for Nigeria”.

Obviously, the words ‘other than a native tribunal’ already made the lapse for its ineffectiveness in the Nigerian system.

To this effect, Section 4 of the Criminal Code was amended in 1933. However, the amendment did not settle matters, as it was not clear what the powers of the Native Courts were when the provision was read together with the Native Court Ordinance of 1933.

In the case of Gubba v. Gwandu N.A. (1947) 12 WACA 141, the West Africa Court of Appeal held that Native laws could be applied on offences under native laws. But if it was an offence provided for under the code, then the code would apply.

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The decision of the court caused controversy, since almost all manners of offences were already provided for under the code. This ruling had, therefore, downgraded the customary criminal laws, as well as the Moslem laws. A committee was enacted to look into this issue. The committee proposed that the customary court could apply customary laws to tried criminal cases, without paying regard to the provisions of the code.  This proposition was upheld by the court in a case like Kano Native Authority v. Fagoli (1957).

In Maizabo v. Sokoto N.A. [1957] NLR 133 (FSC), the court held that though native courts could try criminal cases, punishment of offenders are not to be given in excess of the provisions of the criminal code. In other words, native courts could try cases, but punishment was to be in accordance with the provisions of the Criminal code.

This situation was unacceptable to native communities, particularly the Northern region, since the code was not drafted for a Muslim community. We must note that the Criminal Code was modelled on the Queensland Code of Australia, drafted by Sir James Fitzsteven in 1878.

The foregoing led to the introduction of the Penal Code to the Northern Region in 1959. This new Code was modelled on a Sudanese code that had already successfully operated in a Muslim community.

1n 1958, the decision was taken in a constitutional conference to wholly expunge the use of customary laws from the Nigerian criminal law system. Thus, making all Nigerian Criminal Laws written, applicable as provided by the Criminal Code and the Penal Code.

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A section of the 1959 Bill of Rights, which became section 22(10) of the Nigerian Constitution, 1963, provides – “No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law.”

Also, Section 8(3) of the Administration of Criminal Justice Act, 2015, provides, “A suspect shall be brought before the court as prescribed by this Act or any other written law or otherwise released conditionally or unconditionally.”

This was how Nigeria ended up with the two-codes system. The Criminal Code that had existed since 1916 (now operative in the Southern region), and the Penal Code of 1959, operating in the Northern region of the country.

Nigeria has its major source of criminal laws from the two principal codes, namely, the Criminal Code Act Cap C38 Laws of the Federation of Nigeria, 2004, and the Penal Code Cap C8, Laws of the Federation of Nigeria, 2004.

Other sources of the Nigeria Criminal laws include the Constitution of the Federal Republic of Nigeria, 1999, the Criminal Procedure Act (Southern), the Criminal Procedure Code (Northern), the Administration of Criminal Justice Act, 2015, other Statutes and Acts of the National Assembly, international treaties, and case laws.

Written by: Inioluwa Olaposi Inioluwa Olaposi studies Law at Obafemi Awolowo University, Ile-Ife. He founded LawHub NG (https://www.lawhub.com.ng), providing academic law posts and laws of Nigeria. He is interested in development and entrepreneurship.


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