CRIMINAL LAW 1.2 CULTURAL INCOMPATIBILITY OF OUR CRIMINAL LAWS
Involves asking the questions;
- What does the law say?
- What is the value of the people vis a vis the provisions of the law?
- R V oko 1938 4 waca page 71.
The apparent impossibility of adopting our unwritten, diverse and dynamic laws and customs led to the introduction of a foreign Criminal Code to Nigeria first by proclamation, ordinance No.10 of 1904. As such, inevitable conflicts arose.
Aderemi has noted that for a conduct to amount to a crime, it must be contrary to the cultural values and beliefs of the people. Though fraught with issues, it applies in this circumstance.
They include areas and aspects such as:
SUPERSTITION: Section 210 of the Criminal Code makes it an offence to call someone a witch. Also, the courts have persistently held that the belief in witchcraft is unreasonable.
In State V Nomeh: The appellant was convicted for the murder of his wife… his plea of provocation (that his wife is a witch and had killed both his children by poisoning) did not avail him.
In R V Gadam: The appellant claimed that he hit the deceased on the head with the handle of a hoe in a bid to break the spell of witchcraft which she has been using on his wife and had no intention to kill her. The court held that holding such belief is unreasonable and finding him not guilty would amount to a dangerous precedent.
In R V Eriyanremu: The accused pleaded insanity under the influence of juju and the practice of witchcraft to a charge of murder (of her albino step-daughter). It was rejected as a plea.
In R V Nwaoke: He was arraigned for the murder of his debtor. It was alleged that he pointed juju at the deceased and threatened that since he has not paid his debt, he shall die of the juju or he shall be unable to eat. The deceased later committed suicide. The court held that the juju could NOT have killed the deceased or make him commit suicide.
In R V Odo: The trial court found the defendants guilty for attempting to pervert the course of justice through supernatural means by spreading black powder around the court room. The West African Court of Appeal Held that they were not guilty as the belief in juju is unreasonable.
In my opinion, the court should have taken a technical and practical approach in deciding R V Odo. In this case, the accused had manifested his intention to pervert justice to weigh in his favour by spraying black powder around the court which he believed was going to work. This alone is enough to establish at least; an attempt. However, the contrary view of the court shows the extent to which they shall refuse to uphold the belief in witchcraft or juju.
There are various provisions in the criminal code which confer rights to statutorily married couples but discriminates against couples married under custom (which is largely polygamous).
A statutory marriage is a monogamous one.
A christain marriage as defined by lord Penzance in Hyde V Hyde
Is a voluntary union for life of a man and a woman to the exclusion of all others during the subsistence of the marriage.
Section 10 of the Criminal Code provides that a wife of a statutory marriage cannot be an accessory after the fact to an offence by assisting her husband to escape.
Section 33 of the Criminal Code exculpates a wife of a Christian marriage from liability for doing an act or making an omission which her husband compels her to do in his presence. Except murder or causing grievous bodily harm.
Section 34 of the Criminal Code provides that there can be no conspiracy between a husband and his wife alone.
Section 36 of the Criminal Code provides that husband and wife of a Christian marriage cannot steal from themselves, neither can a husband and wife of a Christian marriage institute any criminal proceeding against each other when they are still living together.
Everything: “Christian Marriage”…
Section 370 of the Criminal Code criminalizes bigamy and stipulates a penalty of 7 years imprisonment.
Bigamy occurs when a person, while in a subsisting marriage contracts to marry a third party.
This law is arguably in disconnect with the belief of the people. This law is being flouted with impunity. In R V Princewill the offender was only sentenced to 3 months imprisonment. Lagos state has taken a bold step of removing this provision from their criminal law.
In Aoko V Fagbemi, the charge of adultery was quashed. The court held that nobody shall be convicted for an offence which is not provided for in a written law and the punishment prescribed.
As annoying as this decision seems, it is well encouraged. In this case, the courts were not trying to support adultery, they only wanted to show their commitment to upholding the provision that no one shall be convicted for an unwritten offence.
How come theft of a tuber of yam can land someone in jail when adultery (which is seriously frowned upon and forms the basis of many homicide cases) is not a crime? Although the supporters of its decriminalization argue that it is between two consenting adults how come homosexuality is now criminalized and adultery is left out since they are both between two consenting adults?