Criminal Code and Penal Code in Nigeria
The most striking difference between the Criminal Code and the Penal Code in Nigeria is the scope of their operation. The Criminal code is applicable to the Southern region, while the Penal code is applicable to the Northern region of Nigeria.
Thus, Northern states in Nigeria operate by the provisions of the Penal Code in the determination of criminal conducts, trial and punishment of convicts. While the states in the Southern region follow the provisions of the Criminal Code. And yes, the provisions of the two codes are not the same.
How did we get here?
The Nigerian Corpus juris is inseparable from its customary and colonial heritage. Given the difference in customary practices, different parts of Nigeria operated different criminal legal systems prior to colonisation.
Majorly, the southern region operated under customary law which defined criminal conducts and attending punishments. While the Islamic legal system or Sharia law obtained in the North, particularly that of the Maliki school.
Advent of Colonialism
With the advent of the British came the application of English Criminal Legal system to the territories that is now known as Nigeria. In 1863, the Common Criminal Laws were introduced to the Colony of Lagos.
In 1904, Lord Frederick Lugard introduced the Criminal Code to the Northern region of Nigeria. Thus, a tripartite criminal law system obtained in the country. That is, the English Criminal Law obtained in Lagos, the Criminal Code in the North, and indigenous rules in the South.
The Criminal code became applicable to the whole of Nigeria in 1916, after the Northern and Southern Protectorates were amalgamated in 1914. However, even then, customary laws of different regions were still applicable, applied in Native courts.
Conflict of Systems
The conflict emerged in 1957, when the court held in Maizabo v. Sokoto N.A. [1957] NLR 133 (FSC) that though native courts could try criminal cases, punishment of offenders are not to be given in excess of the provisions of the criminal code. That is, the customary criminal punishments were outlawed and rendered inapplicable, if they are not compatible with those of the Criminal code.
This situation was unacceptable to the Native communities, particularly the Northern region. This is because the Criminal Code was modelled on the Queensland Code of Australia, drafted by Sir James Fitzsteven in 1878. This model does not suit the moslem society.
And this led to the introduction of the Penal Code to the Northern region in 1959. The Penal code was modelled on a Sudanese code that had successfully operated as suiting a Muslim community.
Abolishment of Customary Criminal System
Notably, in a constitutional conference in 1958, the decision was taken to eradicate the use of customary laws from the Nigerian Criminal Law System.
A section of the 1959 Bill of Rights, which became section 22(10) of the Nigerian Constitution, 1963, provides – “No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law.” This is now provided in Section 36 (12) of the Constitution, 1999, as amended.
Also, Section 8(3) of the Administration of Criminal Justice Act, 2015, provides, “A suspect shall be brought before the court as prescribed by this Act or any other written law or otherwise released conditionally or unconditionally.”
This is how Nigeria ended up operating the Criminal and Penal Codes in the administration of its Criminal legal system, simpliciter.
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Can we therefore deduce that sharia law is essentially a customary law, albeit one with a religious flavour?
No. Shari’a or Islamic law is not the same with customary law because it is not restricted to any particular tribe or region and it is mostly in written form unlike customary law. In essence, Shari’a is applicable to all Muslims worldwide, it is universal in nature and it derives its principles from a divine scripture. There is a judicial pronouncement of the Supreme Court on the difference between Shari’a law and customary law per A.B. Wali JSC of blessed memory. You may wish to Google it as I can’t recall the citation.
Then what is the clear Elucidation for the Shari’a and
Customery law?
Absolutely.