CRIMINAL LAW 1.1 GENERAL INTRODUCTION
As noted by Glanville Williams: the definition of crime is a difficult task to embark upon because the word “crime” is both vague and broad.
“Crime” emanates from the Latin word “crimen” which means accusation.
Section 2 of the Criminal Code uses the word “offence”. Defines it as: an act or omission which renders the person doing the act or making the omission liable to punishment under this Code or any Act or law. Professor Aguda says Section 2 of the Criminal Code used the word “offence” because of the stigmata attached to the word crime and criminal.
In my opinion (not conclusive), the criminal code was careful not to use the word “crime” because, there are some breaches that would be unworthy of the term crime for example, the mala prohibita offences like driving without seatbelt.
Blackstone: An act committed or omitted in respect of a public law forbidding or commanding it.
This definition in my own view makes all offences seem like a strict liability. It describes crime rather than define it.
Clark equates crimes with public wrongs which can be defined in terms of their procedure. In practice, there is usually a procedure for each crime.
Glanville Williams, a crime is an act that can be followed by criminal proceedings.
Sir Fitz James Stephens Defined crime as an act or omission punished by law.
Sir Carleton Allen “why is crime punishable”? Because it threatens the wellbeing of the society and the state should interfere as compensation alone would not suffice. The injured party may not be able to pursue his claims.
In A.G V Awoyele the court held that the inclusion of a punishment or penalty for the commission of an offence makes it an offence. See also Section 17 of the interpretation act 1964.
A criminal act has been defined as acts prohibited in the interest of the public.
Terrence Morris says that if there is no law there can be no crime. This is usually the case. Because a person cannot be convicted for a crime that is not embodied in a written law. Aoko V Fagbemi.
Professor Adeyemi defines crime as (not verbatim): Acts or omissions that amount to a total disregard of the fundamental values of the society thus threatening life, property, safety and cohesion of others, justifying the intervention of the society through the appropriate legal machinery. In my opinion, this is a better approach at defining crime. It also tells us to some extent why a conduct is a crime and the objective of criminal law.
Aderemi: For a conduct to be a crime, it must be contrary to the cultural and moral values of the society.
This is right in one sense: that it is one thing to create an offence and it is another to enforce compliance. In Nigeria, bigamy (though an offence) is still disobeyed with impunity because it is arguably in sync with the cultural beliefs of many Nigerians.
However, it is vital to note that: though overlaps may exists, crime and morality are not the same- Aoko V Fagbemi.
The Wolfenden report stated that the function of the criminal law is to preserve public order and decency and protect citizens from exploitation, injury and corruption… I concur.
We shall attempt to understand “crime” by outlining some of its distinguishing characteristics:
- Crime is generally punitive in nature.
- In practice, prosecution is done by the state and unlike civil proceedings, the victim cannot halt prosecution. Because a crime is seen as a wrongdoing against the people.
- The accused is presumed innocent until the prosecution can prove (beyond reasonable doubt) his guilt see R V Seidu, Section 36 of the 1999 constitution. This shows the willingness of the state to lean to the side of the accused… as was stated in Woolmington V DPP, that it is better for 10 guilty men to go unpunished than for an innocent man to suffer.
- Flowing from the principle that the law looks forward is the principle that no one shall be convicted for an unwritten offence-Aoko V fagbemi, Section 36(12).
- Liability is imposed on a man only to the extent of his responsibility.
- The law looks forward and not backwards.
In conclusion, attempts by the various scholars to define crime has been successful but futile. Their propositions are correct but restricted, and vague. Due obviously to no fault of theirs. The content of criminal law may vary from age to age, country to country and district to district. To this effect, it is humble to submit that there is no single accepted definition of crime.
There existed, pre-colonial systems of administering criminal justice in Nigeria. The customary system was largely unwritten and diverse. Based on the customs of the people. Nigeria has over 350 ethnic groups with diverse customs and traditions.
In the North, the Muslim law of crime (largely written) applied with the Maliki school dominating.
The history of our criminal law can be traced to the English law which was based on common-law. Though that of Nigeria is based largely on statute.
Upon the arrival of the British, they found that the customs and traditions of Nigerians were diverse, ambiguous and unascertainable. Some traditions were marked off as barbaric and uncivilized.
This led to the impracticability of adopting our laws.
The Lord Luggard administration… in the bid to create a precise, concise and blended criminal code: introduced a criminal code by proclamation to the North in 1904 (ordinance No. 10 of 1904). This Code was extended to the whole of Nigeria in 1916 after its unification in 1914. This code was partly based on the draft code of Sir James Fitz Stephen of 1876 which was rejected in Britain and introduced to Australia.
The British were later ambivalent as regards the provisions of the Muslim law and the consequences that may arise from its replacement as it was an integral part of the Northerners’ way of life. Provocation could not limit murder to manslaughter and some punishments like smoking and drinking, and so on were absurd to the Europeans.
The process of gradual change was adopted as a solution. Conflicts were to be modified by the administrative officers.
In Gubba V Gwandu Native Authority the court held that in the event of a conflict, the code would prevail as such where there exists both customary and statutory provisions on a crime, the law of the code shall be applied. Until the case of Mazigbo V Sokoto Native Authority: where the court noted that there should be no prevalence provided that the punishment levied does not exceed that provided in the Criminal Code.
The rejection of the Criminal Code in the North for its failure to connect with the values and religion of the people led to the introduction of the Penal Code in 1959 to the North. Based on the code of Sudan. The Sudan code can be trace to that of the Indians which was largely prepared by lord Macaulay.
Further agitation by the North in 1999 for a more religious based code that can curb the decay in the society led to the introduction of the Sharia Penal Code. First to Zamfara state.
The severe punishments provided in the sharia penal code for minor offences generated a lot of controversies. See C.O.P V Amina Lawal and Yahaya Mohammed. Where the trial court sentenced Amina Lawal to death by stoning for adultery. She won on appeal (on technical grounds).
Subsequently, the abolition of common-law and customary law offences (except they have been codified) came with the rule that:
“Nobody shall be convicted for an offence unless that offence is provided in a written law and the penalty prescribed” see Section 36(12) of the constitution, Aoko V Fagbemi.
Lagos has enacted the Criminal Laws of Lagos State which is arguably more refined and reviewed.
In conclusion, In Nigeria, our criminal law is based largely on the Criminal and Penal codes applying to the South and North respectively. The codes are supplemented by a host of other statutes for example, Dangerous Drug act. Case law plays an important role of interpretation where a provision of the Criminal Code is ambiguous or laconic.