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The Military and the Criminal Law in Nigeria

Published online by Cambridge University Press:  28 July 2009

M. Adekunle Owoade
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Extract

Nigeria was under military rule from 1966 to 1979, and from December 1983 to date; it had a short civilian interregnum from 1979 to 1983 during the era of President Shehu Shagari.

This rather long period of military administration in Nigeria brought along with it changes in the scope of substantive criminal law as well as procedural changes. This can be partly explained on the ground that the criminal law must react and adjust to societal changes and formulate its own rules to combat them. However, an assessment of the attitude of the military to criminal law might suggest that certain fundamental rules have been sacrificed for despatch.

This article is an attempt to highlight the contribution of the military administrations to the development and scope of criminal law in Nigeria. The approach is to examine the various important criminal law enactments of the military era with a view to see their impact, if any, on the hitherto existing rules and system of criminal law.

Type
Articles
Information
Journal of African Law , Volume 33 , Issue 2 , Autumn 1989 , pp. 135 - 148
Copyright
Copyright © School of Oriental and African Studies 1989

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References

1 It is necessary to explain certain recurrent terms or usage in the article. Nigeria became an independent country in 1960 and operated an ‘Independent Constitution’ from 1960–1963. It became a Republican country in 1963, thus the Constitution and government that was in operation between 1963 to 1966 is hereinafter referred to as the First Republic. From 1966 to 1979, it was under one form of military rule or another. From 1979 to 1983, it operated a Second Republican Constitution under the presidency of Shehu Shagari, thus creating a break after a rather prolonged military rule. General Muhamned Buhari then took over government, marking the first military administration after the Second Republic. Buhari's government was overthrown in August 1985, since when there has been military rule under the leadership of (President) General Ibrahim Babangida.

2 The bulk of the criminal law of Nigeria is contained in two separate enactments: the Criminal Code Cap. 42 Laws of the Federation of Nigeria and Lagos 1958, which is applicable in the southern states, and the Penal Code Law No. 18 Laws of Northern Region of Nigeria 1959, which is applicable in the northern states. Directly or indirectly the origin of both Codes could be traced to the common law of England.

3 See, e.g. Ishola v. The State (1969) 1 N.M.L.R. 259Google Scholar.

4 Apparently because of the drastic reduction in the punishment for the offences contained therein.

5 S. 401 Criminal Code and s. 296 Penal Code.

6 See e.g. Adeyemi, Adedokun A., “Robbery—A Threat to a Developing Country”, paper presented at the Seminar on Robbery and Its Counter-measures, organised by Pahek International Industrial Services at Durbar Hotel, Lagos, 25–26 08, 1986. (Unpublished)Google Scholar.

7 S. 10.

8 Sections 1 and 2.

9 S. 5:1.

10 S. 18(1–3).

11 See sections 5, 7 and 8 of the Exchange Control (Anti-Sabotage) Decree 1984 and sections 7, 13 and 15 of the Counterfeit Currency (Special Provisions) Decree 1984.

12 S. 12.

13 S. 11.

14 S. 6.

15 At the time of the conclusion of this article, most of the hitherto convicted politicians have left prison. Some were released by the Special Review Tribunal, some by the Special Appeal Tribunal and more recently some by state pardon. All this happened during the administration of President Babangida.

16 A tribunal under s. 5(2) of the Decree, consisted of a chairman, an officer in the armed forces, and three other officers of the armed forces not below the rank of Lieutenant-Colonel or its equivalent and a serving or retired judge of the High Court.

17 Our various military penal decrees have consistently breached the rule of presumption of innocence which is generally safeguarded under the Constitution as well as the Evidence Act. See e.g. s. 33(5) of the 1979 Constitution and s. 135 of the Evidence Act Cap. 62 Laws of the Federation of Nigeria and Lagos, 1958. In Cyril Areh v. C.O.P. (1959) WRNLR 230 at 231Google Scholar, it was said: “It is a principle of law that the burden of proof lies upon the party who substantially asserts the affirmative of the issue and generally in criminal cases (unless otherwise directed by Statute) the presumption of innocence casts on the prosecution the burden of proving every ingredient of the offence”. See also R. v. Basil Ranger Lawrence (1932) 11 N.L.R. 6 (P.C.)Google Scholar, Amos Adetola v. R. 10 (1944) 10 W.A.C.A. 221Google Scholar.

18 By virtue of the Recovery of Public Property (Special Military Tribunal) Amended Decree No. 21 of 1986.

19 This includes power to confirm, maintain or set aside the decision of the tribunal.

20 E.g. Recovery of Public Property (Special Military Tribunals) Decree.

21 See S. 2:2, (a) and (b). Note S. 2:3 which disqualifies any person who has taken part in the search for, pursuit or apprehension of any person charged under the decree from sitting as a member of a tribunal to try such an offender.

22 See e.g. S. 12(6) Recovery of Public Property (Special Military Tribunals) Decree 1984.

23 S. 1:2.

24 E.g. s. 1 of the Exchange Control (Anti-Sabotage) Decree No. 57 of 1977. Note that retroactive legislation is a negation of the principles of legality and the rule of law. See s. 33(12) of the 1979 Constitution of the Federal Republic of Nigeria and S. 11 of the Criminal Code.

23 Death penalty: Arson, s. 6(3)(c); tampering with electric, telephone cables etc., s. 6(3)(g); dealing in cocaine s. 6(3)(k). Twenty-one years imprisonment without option of fine: offences connected with negotiable instruments, s. 6(2); aggravated offences to public installations, s. 6(3)(b); tampering with postal matters, s. 6(3)(b); cheating at examination, s. 6(3)(c). Ten years imprisonment: exporting commodities without licence. S. 6(3)(a) and wilful destruction of public property, s. 6(3)(a). Five years imprisonment: unlawful destruction of highways, s. 6(3)(d) and selling of prohibited goods, s. 6(3)(j).

26 See e.g. Ajai, Olawale, “An Appraisal of the Special Tribunal (Miscellaneous Offences) Decree No. 20 of 1984”, (1986) 1 & 2 Unife L. J. p. 68Google Scholar.

27 As contained in ss. 50 & 51 of the Criminal Code, and s. 419 of the Penal Code.

28 The Constitution guarantees freedom of expression subject to laws that are reasonably justifiable in the interest of defence, public safety, public order, public morality or public health. See ss. 36 and 41 of the 1979 Constitution.

29 For the judgment of the Tribunal, see The Guardian, Vol. 2 No. 385 Friday 6 07, 1984Google Scholar. The ruling on the preliminary objection by counsel for the defence is in The Guardian Vol. 2 No. 364 Sunday 16 06, 1984Google Scholar.

30 The Decree started with a preamble which reiterated the limits to constitutional freedom of expression as contained in s. 4 of the Constitution. It reads, inter alia, “And whereas it is necessary to take appropriate measures to prevent further disclosure of classified and confidential matters in the interest of public safety and public order …”.

31 See the commencement to the Decree as well as ss. 1—3.

32 S. 1 of the Decree states that: “Notwithstanding anything to the contrary in any law (including the appropriate service law, the Constitution of the Federal Republic of Nigeria 1979 and the Military Court (Special Powers) Decree 1984, the Armed Forces Ruling Council shall have power to constitute a Special Military Tribunal for the purpose of the trial for any person whether or not a member of the armed forces who at any time before or after the commencement of this decree, in connection with or furtherance of any act of rebellion against the Federal Military Government has committed the offence of treason, murder and any other offences under any law in force in Nigeria, including the appropriate service law”.

33 Unreported decision of the Special Military Panel on Treason—thoroughly discussed by Ughovwa, Stella O., “The Scope of the Law of Treason in Nigerian Law”, unpublished L.L.M. Thesis, University of Ife, Ile-Ife (1986)Google Scholar.

34 Supra.

35 S. 1(1).

36 S. 3(1).

37 Schedule I contains all offences that have direct or indirect relationship with riot and civil disorders under the Criminal Code Cap. 42 Laws of the Federation of Nigeria and Lagos 1958 and the Penal Code Law No. 18 Northern Nigeria 1959. The Schedule listed 36 offences under the Criminal Code and 53 offences under the Penal Code. These include murder, treason, rape, wilful damage to property, forcible entry, hurt, disturbing religious assembly, theft, assault, mischief, rioting, unlawful assembly, sedition, inciting disturbance, etc.

38 See e.g. offences contained in the Exchange Control (Anti-Sabotage) Decree 1984 and the Counterfeit Currency (Special Provisions) Decree 1984 as amended.

39 See the Treason and Other Offences (Special Military Tribunal) Decree No. 2 of 1986.