Criminal Liability of Corporate Entities in Nigeria and Other Jurisdictions

Previously at Common law, it was believed that corporate entities cannot be liable for criminal offences, because they lack any mental calculations for the satisfaction of mens rea, neither can they be subjected to imprisonment of corporal punishment. Corporate entities were only criminally liable for acts of nonfeasance. Later, it was extended to misfeasance acts.

However, presently under common law, corporate entities are liable for acts involving criminal liabilities with limitation to acts like assault, manslaughter, murder, and rape. According to Stephen Griffin in Griffith v. Strudebraker, (1924), “a corporate entity may not be convicted of murder or manslaughter as the sentence for that offence, namely, a mandatory penalty of death or life imprisonment respectively, is incapable of being imposed against an artificial entity.”

Also, Stable J. in Moore v. Brestlet ltd (1944) states as follows, “….perjury and offence which cannot be vicariously committed or bigamy…..offences of which murder is an example, where the only punishment the court can impose is corporal, the basis of which the exception rests being that the court will not stultify itself by embarking on a trial in which if a verdict of guilty is returned, no effective order by way of sentence can be made.”

Furthermore, in the words of Smith and Hogan (2002), “Since a corporation is a creature of law, it can only do such acts as it is legally empowered to do, so that any crime is necessarily ultra vires and the corporation having neither body nor mind, cannot perform the acts or form the intent which are prerequisite of criminal liability.”

The Nigerian legal system, as fashioned in line with the English system, adopts the common law position to the effect that corporations can be criminally liable but not for all offences.

It is noteworthy that it is difficult to say if the Criminal or Penal Code of Nigeria contains any explicit provision in relation to the process of enforcing criminal liability on corporate entities.

In Attorney-General (Eastern Nigeria) v. Amalgamated Press the court, per Ainley, CJ., stated that a company cannot be charged with an offence for which imprisonment is the only available punishment. However, there are only few punishments which are strictly fixed by law. Therefore, the court has applied the payment of a fine as an alternative in many cases. (Thus, in R v. Service Press Ltd, the court imposed a fine for the punishment of contempt of court, in place of imprisonment.)

See also: Corporate Liability in civil matters (Nigeria)

Statutory Liability

While the common law doctrines of vicarious liability and identification theory are applicable in Nigeria, the state of criminal liability of corporate entities is better approached from the standpoint of statutory liabilities.

There are many statutes in Nigeria, both of federal and state legislations, that impose liability on corporate entities. Such statutory-created offences are often strict liability offences – i.e. they allow the acquisition of criminal liability without the need to prove any fault on the part of the committer.

Such statutes include the Food and Drug Act; Standard Organization of Nigerian Act; Dangerous Drug Act, The Consumer Protection Council Act, The Environmental Sanitation Edict of Edo State, Oil in Navigable Waters Act, etc.

In such a way as analyzed by the facts under discussion, a company can be found guilty of a criminal offence in Nigeria. Therefore, in R v Zik Press (1947) a corporate entity was found guilty of an offence of contravening Section 51(1)(c) of the Nigerian Criminal Code Act. Similarly, in Mandilas & Karaberis v. COP (1958), a corporation was convicted of the offence of stealing by conversion under sections 390 and 383 of the Nigerian Criminal Code Act.

Other Jurisdictions

Nigeria is not alone in this imbroglio. Other jurisdictions are also providing ways of dealing with this challenge.

In the United Kingdom, companies are made liable for the offence of manslaughter associated with gross negligence through the promulgation of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007. Also, this act seeks to provide for the prosecution of companies when there are fatal consequences resulting from gross failure in the organization, particularly in relation to the management of health and safety.

The principle of criminal liability under the federal laws of the United States of America is based on the doctrine of respondeat superior or vicarious liability and aggregation doctrine. In United States v. Hilton Hotels Corporation, the court relied on the respondeat superior doctrine in arriving at its decision. This principle is such that the action of an employee – within the scope of his employment – is taken directly as that of the corporation. Therefore, the company is liable if the employee commits a crime.

Conclusion

Corporate crimes exist, and they are committed like ‘private’ crimes. The determination of liability of corporate entities is dependent on the available laws of any jurisdiction.

In the Nigerian scenario, it is difficult to affirm that the major statutes of criminal enquiries – i.e. the Criminal and Penal codes, contain any solution to the challenge of determining the culpability of companies in criminal matters. In the light of this, we must resort to particular statutory liabilities for such a determination.

However, it is recommended, in view of the prominent disasters including petroleum oil pipe and gas explosions, sea disasters, and collapsed buildings, that the Nigerian state should introduce an offence of corporate manslaughter, to ensure more preservation of lives and properties going forward.

Criminal Liability in Nigeria

Generally speaking, an offence is made up of two elements, required for commission and liability. These are the physical element (actus reus) and mental element (mens rea).

Although the later may refer to two concepts – men rea as an element of an offence to be proven for culpability in every offence, or the English doctrine of mens rea which is a rule of statutory interpretation or criminal liability.

The physical element of an offence is quite straightforward and easy to ascertain. It is objective, rather than the mental element, which is subjective. Actus reus may be an act or omission of the offender, or even the consequence of the actions done. In the offence of stealing, for example, taking possession of an unowned object is an act that constitute the actus reus of the offence.

Section 515 of the Nigerian Criminal Code recognizes the neglect to prevent the commission of a felony as an offence punishable by two years imprisonment. This is a clear case of an omission. Also, in the offence of murder, it is the death of the victim – which is a consequential effect of the real actions of the offender e.g. shooting – that amounts to the real actus reus of the offence. This is a case of causation.

The English doctrine of mens rea, applicable in Nigeria, emphasizes that unless as expressly provided by statute, the guilty mind of an offender must be proven for culpability. In other words, unless otherwise provided, the definition of any crime requires the fulfillment of a mental element for liability. According to Lord Reid, “whenever a section is silent as to mens rea, there is a presumption that, in order to give effect to the will of parliament, we must read in words appropriate to require mens rea.”

The recognizable level of culpability to an offence is dependent on the form of mental element involved. The Model Penal Code, of the United States of America, defines four levels of culpability, namely: purposely, knowingly, recklessly, and negligently. Additionally, the authors – Okonkwo and Naish – noted five levels namely: intention, recklessly, negligently, accident, and unconsciousness. In the later, the different levels are categorized based mainly on the foresightedness and desire of the offender.

If the offender foresaw the crime and desired it, then he was ‘intentional’. If he foresaw it, but did not desire it, he was ‘reckless’. A negligent offender did not foresee the criminal consequence of his action, even though he could reasonably have. While an accident is an event that was neither foreseen nor desired by anybody. An unconscious offender is in a state of automatism.
The English doctrine of mens rea is not as straightforward as it seems, as this can be seen in similar cases of R v. Hibbert and R v. Prince, as well as R v. Tolson and R v. Wheat and Stocks.

The Nigerian Criminal and Penal Codes on Criminal Liability

It has been argued that there exists no reason why mens rea in its English doctrine form should still be applicable in Nigeria, particularly in the Southern region of the country, because the mental requirement of criminal liability is adequately provided for the Nigerian Criminal Code Act.

The local provision of Nigerian law could replace the English doctrine like section 7 of the Evidence Act has done to the common law doctrine of res gestae. (The res gestae of a crime includes the immediate area and all occurrences and statements immediately after the crime)

The whole of Chapter V of the Criminal code is directed towards the issue of the determination of criminal liability. The chapter elucidates on general defenses like insanity, intoxication, immaturity, Bona fide claim of right, etc. However, significant provisions as to intention and mistake can be seen in Section 24 and 25.

First paragraph of Section 24 provides, “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”

Clearly, the Criminal Code Act prohibits the endorsement of criminal responsibility on a person who did not act willfully, or in the case of an event which occurs by accident. In other words, unless as otherwise provided as pertaining to negligence, a committer is not criminally liable unless he is proven by the prosecution to have acted willfully.

Section 25 of the Criminal Code Act goes further to provide the absence of criminal responsibility in a situation of mistake of fact. It provides, “A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things, is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.” In other words, unless as provided by law, a committer is not criminally liable for an act committed under a mistaken fact (and certainly not law).

From the foregoing, it is clear that the criminal code act provides expressly for the requirement of criminal liability, which means the Nigerian State, and particularly the Southern part therefore, do need any recourse to an external law to establish the principle of mens rea.

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See also:

Corporate Crimes

Corporate Liability in Civil Matters (Nigeria)

Crimes and Criminal Responsibility

Crimes, often considered public, are frowned at in every society.

Every conduct that pose significant threat to the inhabitant of any community is treated with serious consideration, and carefulness. Little wonder the prohibition of crimes flow with attending consequences.

According to Richard Quinney , an American sociologist, “crime is a definition of human conduct that is created by authorized agents in a politically organized society.”

Also, the authors – Okonkwo and Naish – defined a crime as “those breaches of the law resulting in special accusatorial procedure controlled by the state and liable to sanction over and above compensation and cost.”

Generally, the object of a criminal proceeding, that also differentiates it from a civil proceeding’ is punishment. The Nigerian Criminal Code Act, operative in the southern region of the country, states that an act or omission which renders the person doing the act or making the omission liable to punishment under the Code, or under any Act, or law, is called an offence.

This is also evident in the dictum of Lord Atkin in Proprietary Articles Trade Association v. Attorney General for Canada [1931] AC 310 at 324, where he mentioned that, “The criminal quality of an act cannot be ascertained by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?”

Punishments ranges from one offence to another, and may be classified for academic purposes. Significantly, an accused is convicted in court proceedings before he is subdued to provided punishments. The process of conviction requires finding the accused guilty of the offence. Being guilty of an offence goes beyond mere commission. ‘A’ might have committed an offence against ‘C’, without being necessarily guilty for it. If, for example, ‘A’, while trying to shoot at ‘B’, was found to have actually shot at ‘C’(who was out of sight), ‘A’ has committed homicide, but not guilty of murder against ‘C’ .

Therefore, necessary for acquiring liability of many offences is not just the commission, but responsibility for the offence. In other words, an accused must not just be liable for commission, but must be culpable. This culpability is dependent on the mental element of the offence – whether intentionally, recklessly, negligently, accidentally, unconsciously, or otherwise.

Corporate Crimes

Crimes may be segmented based on different forms of classifications. Perhaps, according to their nature, punishment attributed, or personality involved.

Corporate crimes are defined as illegal acts, omissions or commissions by corporate organisations as social or legal entities, or by officials and employees of the corporations acting in accordance with the operative goals or standard, operating procedures and cultural norms of the organisation, intended to benefit the corporations themselves.

These crimes are also referred to as ‘White Collar Crimes.’ They are performed by corporate entities or by individuals acting on behalf of corporate entities, and usually for the benefit of the company.

Asha (2012) notes that, Corporate Crime, known and identified by several different names like “Corporate Frauds”, “Business Crime”, “White-collor Crimes”, “Corporate misconduct”, “Corporate misbehavior”, can take a turn out to being harmful to the environment, employees, consumers or society at large.

The possibility of corporate crimes is the fundamental root of this discourse. Crimes of different gravities are capable of being committed by individuals, as well as corporate entities. In the former, the liability is determined based usually on the completion and fulfilment of the physical and mental elements of the offence(s).

However, how can liability come to play in a crime committed by a corporate entity that can not be said to have mentally be involved in anything? Who should we hold responsible for such (as it is in Nigeria) felonies, misdemeanors, or simple offences, committed by a corporate entity? Or more fundamentally, should the entity be liable at all?

Theories of Corporate Criminal Liability

Basically, there are two identifiable theories of corporate criminal liability, namely: the identification theory, and the respondeat superior theory.

The identification theory is also known as the alter ego theory. Under the theory, the acts of high-ranking officials of a company, within the scope of their employment, is seen as those of the company itself. Developed by English law, this theory is a child of civil law of tort.

The doctrine of identification has its root in Lernards Carrying Company Limited v. Asiatic Petroleum Company Limited – a civil case, where Viscount Haldane noted that, “corporation is an abstraction, its active mind and directing will must consequently be sought in the person who is really the very ego and centre of the personality of the corporation.”

The rationale behind this theory is simple. The officials of a company are the brain behind its activities. It is their decisions that are carried as the dealings of the business. And they do not just act arbitrarily as such, but the company has entrusted them with the authority to make such decisions on its behalf. Therefore, the mens rea of these high-ranking officials is that of the company itself. This category of officials includes the board of directors, the managing directors, and other persons responsible for the management of the company. The Identification theory can also be seen in Tesco Supermarkets Ltd. v. Nattrass .

On the other hand, under the respondeat superior theory the company is responsible for strict liability offences, or for offences for which expressly or impliedly provides for indirect liability, i.e. the principle of vicarious liability whereby the acts of an employee or subordinate is taken as that of the employer – in this case, the company. The actus reus and mens rea of an official is automatically those of the cooperate entity, in the commission of a crime, within the scope of his employment.

N.B. This article is particular to Nigeria.

Law of Attempt

The interest of crime prevention would not be well served if a man intending to commit a crime were to be held innocent until he had actually committed the crime intended. Mere intentions is not criminal, however, where that intentions is put into effect, one maybe guilty even before he achieves his aim. Thus, it is an offence to commit an offence.

THE INTENT.

The prosecution must prove that the accused intended to commit the offence which he is alleged to have attempted. Thus in R. V. Seidu, the accused could not be guilty of attempting to commit rape because he did not intend sexual penetration. This is evident also in R. V. Offiong.

Since section 4 requires prove of intent to commit an offence, it is arguable that the rule of ignorance is not an excuse is excluded by necessary implications. It should be noted that a man cannot be convicted of attempting an offense of strict liability unless he consciously intended it.

THE ACTUS REUS

What sort if act constitutes an actus reus? The question must be approached with caution. Section 4c.c in effect requires 3 elements for the actus reus of attempt.

1. That the accused has begun to put his intentions into execution
2. That he has not fulfilled his intentions to such an extent as to commit the crime.
3. That his intentions be made manifest by some overt act.

English law draws a distinction between preparation to commit an offence & an attempt. The former not usually being sufficient to ground liability, though in certain cases it might be expressly declared to be enough.

In R. V. Button, the accused entered for an athletic meeting and filled in the entry form falsely. It was held that he was guilty of attempt to obtain by false pretense.

In R. V. Robison, on the other hand, a jeweler, tied himself up and pretended that his shop had been burgled. His aim was to collect the insurance money but was arrested before-hand. It was held that There was no attempt.

However, none of this takes us close towards a general theory of attempt. As parke B in R. V. Eagelton stated “some acts is required & we do not think that all acts towards committing a misdemeanor is indictable”

This statement was approved in R v. Robison & applied by the northern high court of appeal in Orija V. IGP. The currently most favored test if attempt is that of Mr. Turner in Orija’s case. Smith J. Describes it as being more practical than that in Eagleton

This is described as the Equivocality test. Turner later modified the test as it was too narrow.

ATTEMPT BY OMMISSION

Section 4 only talks about intention being manifested by overt act. But presumably, it would be possible to convict for an attempted criminal omission, at least where the crime was one of intentions.

ATTEPMTING THE IMPOSSIBLE

It is immaterial in a conviction for an attempt which by reasons unknown to the offenders is impossible to be committed. Thus, a man is only guilty of an attempt if he puts his hands into an empty pocket to steal. If the impossibility is a legal impossibility, then there is no attempt. E,g an infant of seven years cannot legally steal.

Whatever doubts may exist on this matter have been resolved by the house of lords in Haugton V. Smith overruling the decision in R. V. Ring.

ATTEMPT TO PROCURE

If anyone procures another to commit a crime, and that person agrees, then there is a criminal conspiracy. If the act is committed, the procurer is guilty as the principal offender even though the committer of the act be not criminally responsible as provided in Section 513c.c

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Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

N.B. This article is particular to Nigeria.

Parties to an Offence

A number of people may be involved in the commission of a crime, but the degree of their involvement may differ a great deal & the law has to decide what degree may suffice for criminal responsibility. In the criminal code, there are two distinct classes of offenders –

1. Principal offenders
2. Accessories after the fact.

The relevant sections of the code are chapter 2 & section 519-521. However, this may include the case of a man who is neither a principal nor accessory but who neglects to prevent a felony which he knows is being committed or is intended to be committed as provided in section 515c.c.

LIABILITY OF PRINCIPAL OFFENDERS

Section 7c.c creates 4 distinct classes of principal offenders. Each of these have little practical distinctions. For there is a rule that anyone who is found to be a principal of whatever type, is deemed to have taken part in committing the offence & could be guilty of the offence and may be charged with actually committing it.

In R. V. Akpuonu, a father buried his newly born twin in the presence of the mother. It was held that there was no evidence of that the mother took part or aided it. In other words, nothing could bring her within the provisions of S.7.

CLASSES OF PRINCIPAL OFFENDERS

1. Every person who actually does the act or makes the omission which constitutes the offence. (S.7A)
   Little discussion of this category is necessary. The man who sticks the knife is the one who does the murder. Where a man who does an unlawful act is acting in all innocence as the agent of another’s criminal intentions, then he himself is free of criminal responsibility.
   In R. V. Idiong & umo, idiong intending to procure an abortion induced umo a native doctor to administer drugs to a woman who died as a result. The WACA took the view that imo’s intention was to relieve the woman of pain. It was held applying common law principle that he was not criminally responsible & that idiong was solely responsible.
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2. Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence (S. 7B) & every person who aids another person in committing an offence. (s. 7C.)
   These two provisions may be conveniently discussed together. The difference between them is merely that under S. 7B, the assistance bis done before the act. Whereas in S.7C the assistance is simultaneous with the offence.
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   If the aid is not given either prior or at the time of the commission of the offence, but is given after, then the accused is only an accessory after the fact. 3 factors are considered here a. The act if assistance b. Mere presence. c. Commission of a substantive offence.
3. Any person who counsels or procures another to commit the offence (S.7D)
   

The last category of principal, those who counsels or procure the commission of a n offence is similar to those who do an act for the purpose of enabling or aiding, although under s.7d, words alone suffice for liability. But the words of counseling must be a sort of positive encouragement as evident in R. V. Idika.

In Ajao v. Alkali amode, an alkali who ordered a policeman to slap an accused for contempt of court was held guilty of assault by virtue if S. 7D.

MENTAL ELEMENTS OF PRINCIPAL OFFENDER

It has been held by the Queensland court of criminal appeal in R. V. Solomon, that S.7 should be read in conjunction with S. 24 & that S. 7 is not intended to create responsibility for unwilled act.

It is submitted that these two authorities provide a correct view of the section since a man cannot be liable for acts which occurs independently of his will as this comes under S. 8 & 9.

LIABILITY AS AN ACCESSORY AFER THE FACT

A person who receives or assists another who is to his knowledge guilty of an offence in order to enable him escape punishment is said to become an accessory after the fact.

Whereas the principal the principal offender is liable to full punishment, the general punishment for an accessory after the fact, is considerably less than 2years maximum imprisonment of it’s a felony & 1 & half years for a misdemeanor.

Actus reus

The actus reus for the offence is receipt or assistance after the commission of a crime. In English law, if a man assists an accessory after the fact, then he himself may become an accessory after the fact. This is provided for in section 10.

Mens rea

The mens rea require is the knowledge of the guilt of the person assisted plus the intention to facilitate escape from punishment which must be proved on all evidence.

Limits to the liability of an accessory after the fact

The law on this subject is wide especially of Sections 10 covers cases of assistance by omission. Section 10 applies to all offences whether felonies or misdemeanor. The only limit provided for in section 10 is that a wife is not an accessory after the fact if she assists her husband to escape punishment. This rule is clearly based on the various emotions which may arise between husband & wife.

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Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

Corruption in Nigeria

Would love to read about Corruption in Nigeria – concept, trail, consequences, legal responses etc.? Continue reading.

Around the globe, the negative perception of corruption in public places continue to grow. It’s struggle to retain its place as one of the major causes of poverty is felt. The menace it has created crawls to all levels if the society ranging from the local & national govt, the civil service, down to the judiciary.

The law on the subject of corruption remains far from clear, however, our criminal justice system at least in theory lays great emphasis on the need for integrity in public life. In this bid, the concept of corruption shall be dissected, whilst contribution to the contention of corruption around the universe would be proffered.

CONCEPT OF CORRUPTION

Various scholars, jurist & writers have on different occasions laid down diverse opinions as to its meaning. According to the OXFORD learned dictionary, Corruption is regarded as “the act of impairing integrity, virtue or moral principle; it is the loss of purity, organization & composition”

It is described as a cankerworm which destroys the integral value of the society. Prof Adeyemi of UNILAG is noted to have said –

“Corruption is so prevalent in Nigeria that it requires no definition”

Corruption relates to the embezzlement of funds, nepotism, bribery & refusal to apply necessary sanctions. To the vast majority, it is considered as a “Monster that is felt rather than seen“.

THE TRAIL OF CORRUPTION

Basically, the form of corruption we focus on related to the Govt, political officers & formal sector. However, it extends to the private and informal sector because there exists a link between the private, formal & informal sectors.

Some are of the opinion that corruption was existent during the colonial & post-colonial era. However, in the pre-colonial era, where the class system had not come into place, corruption according to prof. Ijalaye had not existed. It is believed that the discovery of oil in Oloibiri in 1956 by expatriate commenced corruption in Nigeria.

The issue of corruption is very much inter-related with other issues. At the global level, the international (Washington consensus influenced) economic system that has shaped the current form of globalization in the past decades requires further scrutiny as it has created conditions whereby corruption can flourish.

At the national level, people’s effective participation and representation in the society had been undermined by corruption whilst at the local level corruption has made the day to day life more painful for all those affected.

Corruption is prevalent in both developed & developing countries. It is not age restricted as both the young & old have tendencies to be corrupt. A difficult thing to measure is the impact if it in poverty versus the effect of inequalities that are structured into law. Corruption is not limited to the third world countries.

As Prof. Robert Neild, from Trinity college Cambridge University writes on his article, “Public corporation: the dark side of social evolution (London anthem press 2002)

“Rich countries & their agencies have been & are accomplice in corruption abroad, encouraging it by their actions rather than impeding it.”

CONSEQUENCES OF CORRUPTION

The consequences of corruptions are universal even if there could be variation in the level of state and non-state approach to these consequences the history of corruption in fact relates to the creation of the law & the state and was already in antiquity considered an Evil. The following are therefore the effect of corruption:

1. Corruption promotes poverty: massive corruption in Nigeria has reduced the amount of money needed for development. An instance can be seen in the management of pension & funds in Nigeria. Nigeria according to Quartz Africa, has the largest extreme poverty population about 86.9 million Nigerians living in poverty represents about 50% of its estimated 180million citizens
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2. Creates condition for political instability: this is because unrestricted corruption makes the state an unlimited allocator of wealth to individuals & groups. This characteristic makes it possible for the politics to be a do or die affair.
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3. Criminalization of Nigerian youths: with its capacity to generate poverty & instability, the youths have been systematically hijacked fir selfish ends by unscrupulous politicians. This has also increased interest in Advance fee fraud.
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4. Existence if an illegal economy: the possibility of bribe infiltrating the security system has made it easy for underground economies in counterfeit, adulterated & substandard products. On Mar 2, 2018, a father & son were arrested for selling tramadol to primary & secondary school in Itire area of Lagos.

The European commission in its report found that corruption is costing the European economy about 120million a year and According to The European commissioner for Home affair, Cecelia Malstotrom, the corruption in Europe is most present in public procurement, financing & healthcare.

LEGAL RESPONSE TO CORRUPTION

There are several laws which have been put into place to fight corruption. Most if these laws include:

Criminal code, penal code, EFCC act, ICPC act, money laundering act, code of conduct act, dishonor cheque act, cyber-crime act.

CHALLENGES TO TACKLING CORRUPTION

The world bank group considers corruption as a major challenge to its twin goal of ending extreme poverty by 2030 & boosting shared prosperity for the poorest 40% of people in developing countries. However, some of the following remain as challenges to eradicating corruption

1. Immunity
2. No acceptable definition of corruption
3. Lack of will
4. Contradictory state policies.

MEASURES TO FIGHTING CORRUPTION

Several measures can be put into place to successfully combat corruption in Nigeria. They include:

1. Expunging of immunity
2. Restricting the scope of capitalism
3. Reinstating china’s system of punishment
4. Jettison of plea bargain
5. Strict enforcement of law
6. Electoral reforms

In conclusion, over the decades, a vast infrastructure of graft and impunity had taken root, taking its place in the political class, business and financial community. Sadly, this extends to the judiciary and media sectors. However, to win this war of corruption, thorough studies and strategies in countering corruption must be upheld.

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Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

N.B. This article is particular to Nigeria.

Principle of Legality

The principle of legality represents the standard of living that is expected of a criminal statute. It is captured in the Latin phrase “Nullum crimen sine lege, nulla poena sine” which roughly translates as “No crime or punishment without the law”. It represents the yardstick by which the legitimacy of criminal law can be measured.

In essence, the principle of legality implies that criminal liability band punishment should be based only on a prior enactment of a prohibition that is expressed with adequate precision & clarity. The principle stands on 3 legs which are:

1. Substantive provision of law
2. Procedures for the enforcement
3. International recognition.

The principle of legality has international flavors. In other words, it is a universal concept or due process in criminal law, meaning that whether we are civilized or not, it can be gathered from how much we comply with the principle of legality.

The doctrines that make up the legality principle include the abolition of existing common law penal doctrines, the prohibition of judicial creation of penal rules, special rules mandating that penal statutes be construed strictly, the prohibition of post facto laws, the due process bar on the retroactive application of judicial interpretations altering criminal rules & the due process invalidation of vague criminal statutes. It is designed to guarantee the primacy of law in criminal procedures so that neither state prosecution nor defendant are exposed to arbitrary bias.

International instruments

Basic principles of legality can be found in the universal declaration of human rights (UDHR), the European convention in human right (ECHR), the international covenant on civil and political rights and the Geneva constitution. In line with this, article 11 paragraph 1&2 of the UDHR (1948) focuses on the principle of legality.

The ICCPR Article15(1) provides “No one shall be guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed.

UDHR article 11(2) states “No one shall be held guilty of any penal offence on account of any act or omission which did not constitutes penal offence”.

ECHR article 7 also states that there should be “No punishment without the law” similar grounds were provided in protocol 1 of the Geneva conventions, 75(4)(c) 1977

Municipal provision

The concept of the principle of legality was also made reference to in section 36(5) CFRN 1999 which provides that a person should be presumed innocent until proved guilty. In other words, there should be no retroactive criminalization of events which were not crimes when they took place. It should be added that punishments cannot be backdated. The provisions of S.36(12) CFRN 1999 makes for this

S. 11 of the code makes for the effect of charges in law where it provides that ” A person shall not be punished forgoing or omitting to do an act unless the act or omission Constituted an offence under the law in-force when it occurred”.

Principle of legality represent ideal goals that all state institution and apparatus involved in the criminal justice system must conform with. It binds all agents of a state: the legislature, & executive especially. The agents used by the executive in the criminal justice system include then police, & prison warden and in the judiciary, it includes the judges. The principle of legality translates

1. That punishment must be within the purview of the law (Written & clear). For instance, the patriot act which relates to cyber activities of the USA has been invalidated for vagueness. The communication decency act 1976 made to target indecent exposure of children to adult related works online has been invalidated. See also Aoko V. Fagbemi
2. It’s laws must be published & not secretive. In this view, section 22 of the criminal code. State “ignorance of the law does not afford an excuse… Unless knowledge by known by the offender is expressly declared to be an element of the law.”
3. It must not be retroactive. This is made for in the case of Udokwu v onugha & anor
4. There must not be trail or punishment by analogy. If what the offender dies is not a crime in the community where it was carried out, then it cannot be a crime.

Relating this principle to our socio-political reality.

The socio-political realm is one of the vital aspects of life in the society and Nigeria as a nation. Thus, the sphere of legality may be said to be in juxtaposition with this realm. This affects areas such as –

1. Arrest & incarceration in Nigeria
2. Activities of SARS
3. Pre-trail parade of suspects
4. Public condemnation
5. Military rule.

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

N.B. This article is particular to Nigeria.

Death Penalty/ Capital Punishment

Should the death penalty be withdrawn or upheld in Nigeria? What do you think? This post considers the death penalty.

For decades, the quest to achieve the maintenance of peace & order have been at the topmost of govt policies. However, this has been crushed by the incessant rate of crimes hitting the country. On 26th July 2018, George kirkham stated in “New-York times” that crimes in the society may never diminish, it grows in geometric progression.

The trial of criminal activities has in turn birthed the preferment of punishments. Whose aim is to curb the heavy rate of crime involvement. The juxtaposition of crimes and punishment has however been founded on the degree of the crime committed by the individual. Little wonder, Lord Atkin in the case of Proprietary trade association V. Attorney general of Canada poignantly quipped

“The criminal quality of an act cannot be determined by reference to any standard but one is the act prohibited by penal consequences”

Thus, crimes which go overboard have been meted the death penalty. Otherwise known as the capital punishment.

The capital punishment is the state authorized killing or execution of an offender consequent on conviction & sentence of death imposed by a competent court. Additionally, such sentence cannot be carried out until the convict had exhausted his right of appeal of a sentence of death.

There are quite a large number of scholarly b& judicial on the lawfulness of capital punishment. Some make argument on Moral & philosophical basis while some make their argument on international law basis this controversy has continued; to linger as an issue within Nigeria and internationally likewise.

Is it in any way justifiable within legal frame work to lawfully execute convicts? This question has been diffused into two stand-point

1. Retentionist argument
2. Abolitionist argument

Abolitionist on Death Penalty

This a view held by those in the abolitionist realm, they believe the death penalty is the worst violation of human right because “right to life” is the most important and it goes further to inflict the condemned with a phycological torture.

The abolitionists refer to it as “Cruel, inhumane & a degrading punishment” presently, 103 countries of the world have completely abolished the death penalty “dejure” for all crimes, six have abolished it for ordinary crimes while maintaining it for special circumstances such as war crimes & 30 are abolitionist in nature.

In the European union, Article 2 of the charter of fundamental rights prohibits the use of capital punishment. The council of Europe which has 47member states has sought to abolish the use if the death penalty by its members absolutely through protocol 13 of the European convention on human rights. In same vein, the united nations general assembly adopted in 2007,2008, 2012 & 2013, non-binding resolutions calling for a global memoratium on execution.

Those in the abolitionist realm have gone further to state their reasons for this archaic mode if punishment.

1. The death penalty is cruel outdated & pre-modal
2. Some argue that it is morally wrong and against right to life
3. When a govt kill, it sends a signal to the people that they can also kill
4. Some believe it places a low value on life and creates a vicious circle of murder.
5. One of the strongest reasons of the abolitionist is the imperfect judicial system for instance in UK a man named Timothy Evans was hanged in 1950 after being convicted for two murder that had been committed by his neighbor. After wards this made the UK to abolish the death penalty.

Retentionist – Why some insist that the death penalty should stay

This opinion is popularly held by the retentionist as it is believed that punishment should be “an eye for an eye” retentionist center their argument around the justification of fairness, retribution, deterrence, economy and popularity.

In the case of Gregg v. Georgia the court held that death penalty isn’t cruel and not an unusual punishment. In Nigeria, the signing not the death sentence by Oshiomole has been praised by proponents of this school. While abolitionist raise “racial discrimination” as a ground, the court in Mcckleskey V. Kempheod that statistical evidence of racial discrimination in death sentencing couldn’t establish a violation if the 14th amendment of their constitution.

Presently about 56 countries have retained the capital punishment. Although most nations have abolished it, over 60% of the world’s population still live in countries were death penalty is retained. E.g China, India, japan, & Indonesia. The UN introduced a resolution during the general assembly’s 62nd session calling for a universal ban.

In this resolution, 52 countries voted against the proposed universal ban. A range if amendment subsequently proposed by a small minority of pro-death countries were overwhelmingly defeated.

The views proffered by the retentionist in support of death penalty include that:

1. Capital punishment actually deters crime
2. Some crimes deserve nothing less than capital punishments
3. The nexus of carrying out capital punishment is not as inhumane as it used to be. It should be noted that in carrying out death sentence, there is no easy or humane way.
4. We are in the time of due process and constitutional democracy
5. It is necessary to state that capital punishment may make for vendetta or self-help.

The administration of criminal justice act (2015) has provided for capital punishment bin some of its sections for instance, section 402(1)(2). Section 4 also provides for the position of pregnant women.

In conclusion, a poll was conducted in Washington & released in July 12th 2018, it found that 69% preferred the idea if life imprisonment to death penalty. The argument as regards the justifications of the death penalty remains of utmost importance. Regardless if whatever opinions are proffered, its relevance cannot go into Oblivion.

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

N.B. This article is particular to Nigeria.

Crime

What is a crime? Can we get an all-encompassing definition for it? Continue reading.

The traditional debate over the definition or crime has not been grounded within the context if the more fundamental images of crime that actually guide the realms of criminological works. Prior to the present dispensation, scholarly attempts have been made by jurist in the quest of defining the term “crime”.

This effort has been like the pouring of water into the basket because unlike most germane legal concepts, the word crime is devoid of a universally accepted meaning. Thus, must be in line with the fact that the concept itself is a complex but elusive one which has therefore defiled every successful effort are ascertaining its exact meaning.

In the same vein, Justice Ayebe in his book “customary law: the war without arms” described the attempt to defines crime as “flirting with definition”. In fact, professor Glanville Williams has described the difficult task of attempting an accurate definition of a crime as “one of the thorny intellectual problems of the law”.

The debate over the definition of crime usually centers on the relative advantages and disadvantages of using “social” as opposed to a “legal definition” most criminologist have traditionally relied on the legal definition which defined it as a behavior in violation of the law.

However, there have been repeated attempts to move beyond this narrow confine, thus according to JWC turner, he posited that “the definition of crime has always been regarded as a matter of great difficulty”

The obvious reasons for this according to him is that

…the truth appears to be that no satisfactory definition has yet been achieved & that is indeed not possible to discover a legal definition of crime which can be of value for English law

The problematic nature surrounding the definition of crime under the English law has equal force under the Nigerian of crime. This cannot otherwise be so, in view of the colonial affiliation between the English common law and the Nigerian law. The Nigerian law of crime has therefore inherited intoto the concept of crime under the English law as well as its complex nature.

In order to do justice to this pertinent question, several dictionaries have likewise attempted to define the word “crime” thus, the Osborne dictionary defines it as: “an act default if conduct prejudicial to the community, the commission of which by law renders the person responsible liable to punishment by fine ii imprisonment in special proceedings..”

Similarly, the Oxford dictionary sees crime as “an act punishable by law as being forbidden by statute or injurious to the public welfare”.

The Black’s law dictionary went further to define crime as an “act or omission rendered punishable by the state”

Furthermore, the principal statutes regulating the Nigerian criminal law namely: the criminal code & the penal code offered no comprehensive definition to the meaning of a crime. Thus, section 2 of the criminal code, defines crime as “an act or omission which renders the person doing the act or making the custom liable to punishment under the code..”

Scholars & writers have argued that thus definition is indeed in that it is silent on the “elements of an offence” it omitted the “mental element” & that a good definition must accommodate both the “physical & mental element”

In the same vein, section 28 of the penal code simply provides ” except where otherwise appears from the context the word “offence” includes an offense under any law for the time being in force”.

Without doubt this definition is antiquated, failing to define the very term it sets to define.

Diverse views & concept have been laid down by scholars, thus, Earl Jowit defined crime as
“An act of default which tends to the prejudice of the community & is forbidden by law or pain of punishment at the instance of the state”.

Also, Sir James Stephen stated that “crime is an act forbidden by law & revolting to the moral sentiments of the society”
Nigerian jurists have also attempted, thus, Justice Karibi-Whyte in one of his writings stated that the only noticeable difference between the lay conception of crime & the lawyer’s conception of it is one between what the law ought to describe & what is actually designated namely “the ought & is” of law.

In the case of Liman v. State (2016) LPELR-40260 CA, the learned Justice Amina audi JCA stated that
“It is trite that criminal responsibility for the commission of crime is premised on the satisfactory proof of the two pillars if actus reus & mens rea.

In an attempt to define crime, Abiru JCA employed this view in the case of Njoku V. State (2017) LPELR 41250 CA.
From the foregoing, rather than travelling on a futile voyage of discovery at ascertaining the exact meaning and precise definition of crime, it is better to ascertain the scope and legal framework of crime.

To this end, the classical exposition of Lord Atkin in Proprietary Articles trade association V. A.G for canada becomes imperative. His lordship stated “The criminal quality if an act cannot be discerned by intuition nor can it be discovered by reference to any standard but one is the act prohibited by penal consequences”.

From the above, since no accurate definition can be offered, it may be safe to conclude that indeed, “Crime is what the state declares it to be”.

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)