Before the arrival of the white men and colonial masters, our forefathers already had established ways and mechanisms of regulating social conduct. This applied to all aspects of their relationships with one another, and law was no exception.
Although there was no clear, systematic, or refined legal framework like we have today in modern Nigeria, it is an undeniable fact that, prior to the British arrival, various systems of criminal law existed across different regions of Nigeria.
Southern Nigeria (especially the former Eastern Region) had numerous relatively simple systems of social norms, based on the unity of the family, village, or a group of villages.
Northern Nigeria had a highly systematic and sophisticated Muslim legal system (Maliki School), which was strict in application and did not recognize certain defences to criminal offences, such as provocation, which are available today.
One outstanding feature of all pre-colonial criminal laws apart from Muslim law was that they were largely unwritten.
The Introduction of English Criminal Law
For centuries, English criminal law was based on common law, supplemented by statutes. However, in Nigeria, the reverse became the case: Nigerian criminal law developed primarily through federal and state legislative enactments.
The British attempted to introduce their systematic legal approach into Nigeria, but this clashed with indigenous systems and was initially unsuccessful.
In 1904, Lord Lugard’s administration in Northern Nigeria introduced a Criminal Code by proclamation. Its purpose, as stated in the preamble, was “to declare, consolidate and amend the criminal law.” This code was extended to the entire country in 1914.”
Initially, its application was limited. Even after 1916, most criminal cases were still governed by native law and custom rather than the Criminal Code. The code was seen as merely a special variety of native law.
The Dual System Problem
The coexistence of two or more systems of criminal law in the same geographic area created a dilemma, especially in Northern Nigeria where Muslim law was firmly entrenched. One major area of conflict was the concept of provocation:
Under the Criminal Code, provocation could reduce murder to manslaughter.
Under Maliki law, provocation was not recognized as a defence to murder. Resistance to the Criminal Code in the North was also political and cultural, as it was not drafted by the Muslim community and conflicted with traditionalist demands.
The 1933 Amendment & Key Judicial Decisions
In 1933 Section 40 of the Criminal Code Ordinance was amended, appearing to abolish unwritten customary criminal law.
However, in Gubbadia v. Gwandu N.A., the West African Court of Appeal held that:
1. If a native court tried an offence that existed only under native law and custom, it could apply native law and impose the customary punishment.
2. If the offence was also under the Criminal Code, the Code alone must be applied.
This case involved a homicide under provocation, and the court’s reasoning suggested that Muslim courts should consider provocation in murder cases.
The 1957 Maizabo Case & Its Challenges
In Maizabo v. Sokoto N.A. (1957), the Federal Supreme Court settled that native courts could apply customary law even where the Criminal Code covered the offence but they could not impose a punishment greater than that under the Code. The drawback of this decision was that native courts had to examine two sets of laws:
first –Native law and custom (for guilt)
second-The Criminal Code (for punishment)
This no doubt created more complexity and failed woefully to fully resolve earlier challenges.
The Emergence Penal Code in Northern Nigeria
To address these issues, in 1958, the Northern Government set up a panel to reform Maliki criminal law. This led to the adoption of the penal Code, which replaced the Criminal Code in the North.
The Penal Code had strong ties to the Muslim community because it was based on the Sudanese Penal Code, itself derived from the Indian Penal Code of 1860,, which in turn was influenced by English law.
The total Abolition of Customary Criminal Law
In the rest of Nigeria, traditional criminal law was less entrenched than in the North. The 1963 Constitution, by virtue of Section 22(10), abolished the application of customary criminal law in Nigeria. The section reads:
“No person shall be convicted of any offence unless that offence is defined and the penalty thereof prescribed in a written law.”
This provision is mirrored in Section 36(12) of the 1999 Constitution.
8. Conclusion
Today, Nigeria operates a dual code system the Criminal Code in the South and the Penal Code in the North. Traditional offences now survive only if they are contained in written enactments.
The evolution from multiple unwritten systems to codified law reflects Nigeria’s complex legal history, blending indigenous traditions, Islamic law, and English legal influence. You make check an extension of this post on our website categories Law Courses