By Abubakar D. Sani Esq

This poser (and retort) is prompted by the continuing application of the Criminal Code Act as a federal law across the country, in spite of what I believe to be its clearly anomalous status vis-à-vis relevant constitutional provisions. In other words, the question is: why is the Criminal Code Act still extant? Haven’t virtually all the 17 States of Southern Nigeria (where it was originally applicable) enacted their own Criminal Code laws? Why does the original Act retain its place in current Laws of the Federation (which contain all statutes enacted by the National Assembly)?. Does the Code still possess the force/status of an Act of the National Assembly? Is it’s subject matter within the legislative competence of that Assembly?.

Beyond these, however, the question is equally pertinent because of the rising incidence of prosecuting suspects at the behest of the Attorney-General of the Federation allegedly for contravening provisions of the Act. To say that this practice is worrisome would be an under-statement, given its constitutional implications. The question of the legal status of the Criminal Code Act is of huge significance to the untold number of convictions that have been secured on the basis of the Act, especially over the course of the over 43 years of the introduction of Federal Constitutions in Nigeria. Suffice it to say that, any conviction which is based on an unconstitutional law, is ultra vires, invalid, null and void. But, first the . . .

History of the Criminal Code Act

The Criminal Code has had a long and chequered history. Its commencement date is the 1st day of June, 1916 (no less!) when Nigeria was very much a British Colony. From that time till shortly before independence (in 1959), it applied across Nigeria; on the 26th day of September, 1959, it ceased to be effective in the old Northern Region, when the Penal Code Law came into force there. Since then, the Criminal Code has survived – in its various local and State-wide iterations – as the primary criminal law applicable across Southern Nigeria. Virtually all the Southern States have their own locally-enacted Criminal Code Laws or Criminal Laws simpliciter.

The Position Under the 1999 Constitution.

Given the peculiar history of the Criminal Code Act and Laws as aforesaid, the current Constitution has made copious provisions which impinge on its validity (as well as that of similar laws). Those provisions are set out in Section 315 of the Constitution which describes statutes which ante-date the Constitution as “existing laws”. Section 315(4)(b) of the Constitution defines them as “any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which, having been passed or made before that date, comes into force after that date”.

Section 315(1) of the Constitution contains the litmus test for determining the validity of any existing law. It provides thus: “Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be:-

An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws, and A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws”. The Constitution divides legislative power between the National and State Houses of Assembly – vide Section 4 thereof. The respective remits of both Legislatures are specifically expressed and defined in the Exclusive Legislative and the Concurrent Legislative Lists. Whilst the former is the sole preserve of the National Assembly, both Assemblies share legislative power in respective of the latter. There is however, a notional third list – the Residual Legislative List – in respect of which only State Houses of Assembly are competent to legislate upon: MINISTER OF JUSTICE & ATT-GEN. OF THE FED. vs. ATT-GEN. OF LAGOS (2013) All FWLR pt.704 pg.1@40. It is settled that, beyond criminal offences which might arise incidentally from a law enacted by the National Assembly pursuant to a specific subject matter contained in the Exclusive Legislative List of the Constitution, the Assembly is incompetent to enact a general criminal law applicable across Nigeria; See Item 68 and Paragraph 2(b) of Part III of the 2nd Schedule to the Constitution and BODE GEORGE vs. FRN (2014) All FWLR pt. 718, pg. 879.

The question, therefore, is: in which List is the subject matter of the Criminal Code Act contained? Is it in the Exclusive List, the Concurrent List or the Residual List of the Constitution? I humbly submit that, to the extent that the Code makes general criminal prescriptions pertaining to virtually every human malfeasance, it is clearly beyond the remit of the National Assembly under the current Constitution. In other words, the subject matter of the Criminal Code is in the Residual Legislative List of the Constitution, in respect of which only State Houses of Assembly are competent to legislate as aforesaid; See TOGUN vs. OPUTA (No.2) (2001) 16 NWLR pt. 740 pg. 597

So, what is the Status – and Fate – of the CCA?

To the extent that, under the Constitution, the Criminal Code Act cannot take effect as an Act passed by the National Assembly, but, rather, as a law made by a State House of Assembly, it has ceased to apply in any of the 36 States of the Federation. In other words, subject to the existence of any other statute which might impinge on its validity, the Criminal Code Act, in the form in which it appears in the Laws of the Federation 2004 and 2010, is only applicable in Abuja, the FCT.

This is by virtue of the provisions of Section 299 of the Constitution which invests the National Assembly with the status of the Legislature of the FCT. The aforesaid qualification is, however, all-important, because of the provisions of Section 13 and the 2nd Schedule to the Federal Capital Territory Act, 1984, which sets out the list of the Laws applicable in the FCT, Abuja. Crucially, the Criminal Code Act is missing (or omitted) from that List. Instead, the Penal Code Law is listed therein as the general criminal law applicable in Abuja and enforceable in its courts – including Federal Courts. The implication of this exclusion of the Criminal Code Act is all-too obvious: it is deliberate and thus, the Criminal Code Act is inapplicable in the FCT.

However, of even greater concern, in my view are certain provisions, such as those of Section 7(3) of the Federal High Court Act, 1973, which stipulate that the jurisdiction conferred by that Act on the Federal High Court in respect criminal causes and matters “shall include original jurisdiction in respect of the offences under the provisions of the Criminal Code Act being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation”. It is obvious that, if the Criminal Code Act is ineffective as a federal law (but rather as a State law), the authority of the Attorney-General to initiate proceedings thereon, within the contemplation of this provision, cannot arise; by virtue of Section 174(1)(a) of the Constitution, that power may only be exercised in respect of offences created by an Act of the National Assembly. The Attorney-General of the Federation cannot initiate, take over or terminate criminal proceedings in respect of offences created by laws enacted by State Houses of Assembly. I submit that this includes ALL the offences contained in the Criminal Code Act or the extant Criminal Code Laws enacted by State Houses of Assembly. I believe that only Attorneys-General of the 36 States are competent to do so: Section 211(1)(a) of the Constitution.

CONCLUSION

The status of the Criminal Code Act is yet another instance of the varied and persistent anomalies in our laws. This one is particularly galling, in my view, because of its implications on the imperative of fair trials under our constitutional order. Needless to say, the earlier it is corrected the better, because the Attorney-General of the Federation – as the Chief Law Officer of the Federation – can ill-afford to be seen as subverting the Constitution in any way whatsoever, least of all by exercising a power which he lacks vis-à-vis criminal offences under the Criminal Code Act/Laws. That power is constitutionally conferred on the various Attorney-Generals of the 36 States of the Federation.