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Appraising the Modern Relevance and Observance of the Principle of Legality in Nigeria – Joshua Oyebode

Principle of legality in Nigeria

Appraising the Modern Relevance and Observance of the Principle of Legality in Nigeria


The Principle of Legality has been a pivot point for evaluation and analyses by various legal scholars across the globe in modern times. The reason for this is not distant, as the principle has been established to be the bedrock and minimum standard required of any democratic state in the world. It is pertinent to elucidate on the meaning of legality before delving into the crux of this paper. Erhard and others define legality as “the system of laws and regulations of right and wrong behavior that are enforceable by the state through the exercise of its policing powers and judicial process, with a threat and use of penalties, including its monopoly on the right to use physical violence.1

Without the principle of legality, the doctrine of the rule of law cannot be effectively conceived. In the context of the intervention of the judicial powers in regulating the details of social life, the principle of legality contributes enormously to maintaining order and balance in the functioning of the state. This paper will examine the principle of legality within the spatial setting of the Nigerian state.

The Principle of Legality as a Universal Standard of Compliance in Criminal Law

The demand of legality to determine criminal responsibility is evinced in two maxims. The first being nullum crimen sine legem (there is no crime without law), and the second, nulla poena sine lege (there is no punishment without law). In Europe, the principle of legality appeared first in the French Declaration of Human Rights and Citizen in 1789. The declaration determined that only the law should impose penalties. In this dispensation, the importance of the principle of legality is demonstrated by its consolidation on the international legal stage in the guise of a universal nature. For example, the Rome Statute of the International Criminal Court2, national constitutions and criminal codes have adopted the same. It has been argued that in modern times, the principle of legality has been reduced to the question on the punishability of a wrongful act solely in accordance with the law.

According to this interpretation, each state interprets its laws according to the specifications of its legal system. This may explain the differences in the understanding and parliamentary expression of this principle in national criminal laws. Nonetheless, the principle permeates international and national criminal laws. For instance, the principle of legality has been interpreted by the European Court of Human Rights as embodying the rule that only the law can define a crime and prescribe a penalty, and the doctrine that criminal law must not be extensively construed to an accused’s detriment, for example, by analogy. This requires that the offence be clearly defined in law, so that “the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it, what acts and omissions will make him liable.”3 The European Court of Human Rights has stated that the principle of legality allows courts to gradually clarify the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen”.4

The Inter-American Court of Human Rights has also affirmed that the principle of legality requires that crimes be classified and described in “precise and unambiguous language that narrowly defines the punishable offence.”5 The principle of legality states that the law should be clear, ascertainable and non-retrospective. The European Convention on Human Rights (ECHR) provides that “No one shall be held guilty of any criminal offence, which did not constitute a criminal offence at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time.6 There is need for clarity for individuals as to where the law stands to protect them, it is also important that organs of government must operate through law. In the case of A v Secretary of State for the Home Department,7 theindefinite detention of suspected terrorists was earlier granted and later revoked by the courts, for being found to be in breach of Articles 4 and 5 of the European Convention on Human Rights.

The Universal Declaration of Human Rights is also a firm authority in this regard. It provides that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”8 It similarly provides that “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”9

Observance of the Principle of Legality in Nigerian Criminal Law

The principle of legality has been applied and examined by Nigerian courts, although it has been challenged by the attendant problems bewildering a quintessential developing country. Section 2 of Nigeria’s Criminal Code Act10 defines an offence as “any act or omission which renders the person doing the act or making of the omission liable to punishment under the code or under any Act or Law.”11A person cannot usually be found guilty of a criminal offence unless two elements are present: an actus reus, and a mens rea. These two elements are found in every criminal statute unless such statute dispenses off with the proof of mens rea with the effect that proof of the actus reus only will suffice for the proof of the particular offence. The social control mechanism which is the criminal justice system is founded upon the rules prescribing what crime is and what it is not.12

According to Smith & Hogan, the general purpose governing the definition of offences in the American Law Institute’s Model Penal Code are (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to the individual or public interests, (b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes, (c) to safeguard conduct that is without fault from condemnation as criminal, (d) to give fair warning of the nature of the conduct declared to be an offence (e) to differentiate on reasonable grounds between serious and minor crimes.13 The abolition of native or customary criminal law is to the effect that no person shall be convicted of a criminal offence unless that offence is defined and penalty thereof is prescribed in a written law.

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The constitution of the Federal Republic of Nigeria 1999 (as amended) gives cognizance to the principle of legality. It provides that “subject as otherwise provided, a person shall not convicted of a criminal offence unless that offence is defined and penalty therefore is prescribed in a written law”, with a further explication that “a written law refers to an Act of the National Assembly or a law of a state as well as any subsidiary legislation or instrument under the provisions of a law.14 Similarly, the African Charter on Human and People’s Right (Ratification and Enforcement) Act provides that no one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed.15 The effect of the foregoing is that there is in the universal criminal jurisprudence the rule against retrospective or retroactive application of the law. Retroactive law is a piece of legislation that looks backward or has recourse to the past, affecting acts, omissions, and facts that existed before the law came into force, to the effect that past doers of the act are liable to punishments.

In criminal law, it is trite that an act or omission is regarded as an offence because its contents are written down and penalty is also clearly stated therein in a written form. It does not give room for speculation and does not admit of any surprise. The law does not allow an increase in the nature or type of punishment after the offence had been committed. Punishment in the manner prescribed for an offence remains the way it was at the time of the commission of the offence. In Ifeagwu v. Federal Republic of Nigeria,16 the court held that it is a fundamental principle that no statute, law or rule can be construed retrospectively. Another pillar of the principle of legality is the doctrine of proportionality. The Nigerian constitution entrenches to the effect that no penalty shall be imposed for any criminal offence heavier than the penalty in force at time the offence was committed.17 The Universal Declaration of Human Rights affirms the same.18

The Nigerian constitution in spite of the wide legislative powers bestowed upon the National Assembly or House of Assembly of a state, stipulates that these legislative bodies do not have the power to make any law which shall have retrospective effect. The effective date for the application of any law relating to any crime shall commence from when the President or Governor as the case may be gives assent to such statute. In Africa, the principle of legality is also contained in constitutions of many jurisdictions including Kenya. In Kenya, the principle is contained in Article 50(2) of its constitution of 2010 and states that the state shall not punish an act or omission, which was not an offence under Kenya Law or International laws at the time of the commission or omission of the offence. Nigerian courts have upheld the principle of legality at various times. A reference in this regard is the celebrated case of Aoko v Fagbemi,19 the case of a woman prosecuted for adultery. The applicant sought for an order quashing the conviction entered against her in a Grade “D” Customary Court on the 21st of February, 1961. The applicant had also prayed that all consequential orders based upon the said conviction be set aside and that the sums of money paid by her in compliance with the Court’s order be refunded to her. The facts of the case are that on 24th January, 1961, the applicant was charged before the ljebu-ljesha Customary Court with the offence of adultery by living with another man without judicial separation. She pleaded guilty to the charge.

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On 21st February, 1961, the Court gave the judgment to the effect that the defendant had proved that she was guilty of the offence. She was subsequently sentenced to both fine and imprisonment. The defendant appealed, and her counsel submitted that there was no written law which the applicant had violated, thus the conviction was contrary to the provisions of section 21(10) of the Constitution of Nigeria, 1960. The foregoing provided that: “No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law.’20 The appeal was held in favour of the appellant. The court noted that her conviction was in violation of her constitutional rights as there was no written law criminalizing adultery.

Similarly, in Udokwu v. Onugha & Anor,21 the appellant was charged in the district court with the offence of invoking juju (black magic) over the complainants/respondents. The court found him guilty and convicted him. The appellant appealed to the county court which found him not guilty of the alleged offence. He was discharged and acquitted. Dissatisfied, the complainants/respondents appealed to the Magistrate court and that court reversed the decision of the county court and restored that of the district court. The appellant then appealed to the High Court and the appeal was granted on the ground inter alia that the conviction was a breach of the appellant’s right as contained and guaranteed by section 21 (10) of the then Nigerian Constitution because the offence was neither defined no penalty therefore prescribed in writing. In the same vein, in Attorney General of the Federation v. Isong,22 the court affirmed the law to the effect that for an act or omission to constitute an offence, it has to be forbidden in a written law but if there is no punishment stipulated for it, no offence is committed. The foregoing perfectly captures the assertion of Lord Atkins in Proprietary Articles Trade Association v. A.G for Canada23, to the effect that the criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one; whether the act is prohibited with penal consequences. Thus, for an act or omission to be designated as a crime, such must have been prohibited by statute and penalty or sanction therefore prescribed in writing.

Obstructions To The Principle Of Legality In Nigerian Criminal Law

The principle of legality in Nigeria, though conspicuously applied at varying times, has nonetheless been challenged by some practices which shall be explicated under two major dispensations; under the military rule and under the civilian regime.

Military Rule

Whenever a military government comes to power, certain provisions of the existing constitution are suspended through the usual Constitution Suspension and Modification Decree. This process was usually an attempt to maintain power, gain legitimacy for the government, and to ensure that popular dissent is suppressed, without minding its effect on the principle of legality. Also, the military ruled by Decrees which had ouster clauses that eroded the power of courts. Basically, the military is characterized by suspension of certain provisions of the constitution, abuses of human rights, dismissal of democratic institutions (executive and legislature), and restriction of jurisdiction of the courts by decrees. The courts had the judgment, but no enforcement machinery. In Agbaje Vs Commissioner of Police24, the complainant sued for unlawful detention by the commissioner of police under the Armed Forces and Police (Special Powers) Decree No 24 of 1967. The decree empowered the Inspector General of Police and the Army Chief of Staff to detain certain persons and provided that such orders could not be inquired into by the courts.

However, the Western State High Court held that the court was empowered to inquire into the validity of such an order. The judiciary struggled to maintain its sacred and constitutional role against restrictions in the form of ouster clauses as demonstrated in Lakanmi and others v The A.G. (WEST) & 2 others25, In that case, the Supreme Court held that the Federal Military Government was not a revolutionary government and that Decree No. 45 of 1968 which called for forfeiture of assets of certain persons amounted to arbitrary sentence. There was no trial of the allegations against the accused and he successfully challenged the acquisition in court. Subsequently, the military government enacted the Federal Military Government (Supremacy and Enforcement of Power) Decree No.28,1970. The Decree eroded the powers of the Supreme Court, making the court reluctant to examine ouster clauses as can be seen in the subsequent attitude of the court to cases on ouster clauses.

In Nwosu v Imo State Environmental Sanitation Authority and Others26, Belgore JSC. stated that “… in military regimes, decrees of the Federal Military Government clearly oust courts’ jurisdiction, there is no dancing around the issue to find jurisdiction that has been taken away…” This passive attitude of the courts to ouster clauses did great damage to the principle of legality in the military era.

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Apart from the introduction of ouster clauses, the military established military tribunals rather use the ordinary courts, to handle cases. The tribunals were constituted under the guise that their presence was necessary to reduce work load on the courts. The establishment of military tribunals was aimed at tackling negative attitudes that threatened the fabrics of the society; armed-robbery, drug trafficking, fraudulent practice and more. However, the tribunals were similarly used as instruments of oppression. A famous example is the Ogoni case involving the late Mr. Ken Saro Wiwa and 8 others, who were tried by the Ogoni civil disturbances tribunal. The convicts were sentenced to death in November 1995 and a few days to the expiration of their period of appeal to the Provisional Ruling Council, the men were executed to the ire of right-thinking members of the local and international communities. During the military era, there were cases of people detained without trials. Attempts by lawyers to seek judicial remedy were futile.

One of the hallmarks of military governments was the enactment of retroactive decrees. These decrees were clear breaches of the principle of legality. Retroactive laws had the effect of turning an otherwise innocent person to an offender for an act done before the decree was enacted. An example of retroactive decrees was decree No.20 of 1984 which introduced drastic penalties to various acts amongst which was transacting in cocaine. The decree was deemed to take effect on 31st December 1983, although it was indeed promulgated on the 6th of July, 1984.

Civilian rule

The principle of legality may be presumed to naturally thrive better in a democracy than under a military regime. Nonetheless, there are practices in Nigeria under the democratic dispensation that offend the principle of legality. A good illustration is the pre-trial parade of crime suspects by the Nigerian Police, the Economic and Financial Crimes Commission (EFCC), and other law enforcement agencies. It greatly offends the principle of legality to parade as offenders, persons whom a court of law has not tried and convicted. Such parades violate the rights of the persons to be presumed innocent until otherwise proved guilty, as guaranteed by Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The concept of jungle justice is another practice that undermines the principle of legality in Nigeria.

When crime suspects are meet with hostility by members of the public, a situation which is a commonplace in Nigeria, it offends the principle of legality. Crime suspects should be handed over to relevant authorities for proper prosecution. The foregoing practices all serve as obstructions to the principle of legality in Nigeria.


From the totality of the issues properly explicated, it is clear that the principle of legality in criminal law is sine qua non to the existence and survival of any government, particularly in a democratic state. The relevance of the principle in modern era is ecumenical, although its observance in some jurisdictions is halted or subjected to abuse of political power or authority, with Nigeria presented as a case study.

The need to strengthen judicial institutions cannot be overstated, as their capacity to rule on the use of executive powers without fear or favour remains the cornerstone of a thriving democracy. The principle of legality should be meticulously observed without reservations in any penal statute or criminal law that will be worth its salt.

1Erhard, Werner; Jensen, Michael C.; Zaffron, Steve (2009). “Integrity: A Positive Model that Incorporates the Normative Phenomena of Morality, Ethics and Legality”.

2Article 66 of the Rome Statute of the International Criminal Court (1998)

3European Court of Human Rights, Kokkinakis v. Greece (3712).

4European Court of Human Rights, S. W. v. UK (3713).

5Inter-American Court of Human Rights, Castillo Petruzzi v Others (3714).

6Article 7, European Convention on Human Rights (ECHR)

7[2004] UKHL 56.

8Article 11(1), Universal Declaration of Human Rights.

9Article 11(2), Universal Declaration of Human Rights.

10Laws of the Federation of Nigeria 2010.

11Section 2, Criminal Code.

12Russell Heaton, Criminal Law, 2nd ed. (London: Blackstone Press Ltd, 1998) p. 2.

13Smith & Hogan, Criminal Law, 7th ed (London: Butterworth, 1988) p. 18.

14Section 36 (12), Constitution of the Federal Republic of Nigeria, 1999, as amended.

15Cap. A9 Laws of the Federation of Nigeria (LFN) 2010.

16(2001) 7 WRN 50.

17Section 36 (8), Constitution of the Federal Republic of Nigeria, 1999, as amended.

18Article 11 (2), Universal Declaration of Human Rights, (1948).

19(1961) All NLR 40.

20Section 21(10), Constitution of the Federation of Nigeria, 1960.

21(1963) 7 ENLR 1; Akinbiyi v. Adelabu (1956) 1 Fsc 451. Legal Notice 159 of 1960 (Chapter III).

22Russell Heaton, Criminal Law, 2nd ed. (London: Black-stone Press Ltd, 1998) p. 2.

23(1931) AC 310 at 324.

241 Nigerian Monthly Law Report, 1969: 137.

256 Nigerian Supreme Court Cases, 1970: 143

262 Nigerian Weekly Law Report, 1990: 688

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About Author

Joshua Oyebode is a law student of Obafemi Awolowo University. He is an exponent of human rights. His other keen interests are constitutional law and criminal law.

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