NIGERIAN INSTITUTE OF ADVANCED LEGAL STUDIES

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1 NIGERIAN INSTITUTE OF ADVANCED LEGAL STUDIES EXPLANATORY NOTES ON THE PROPOSED UNIFIED CRIMINAL LAWS General Overview The Proposed Unification document was developed based on the provisions of the Criminal Laws of Lagos State 2011 and the Penal Code Act applicable in Abuja, which were randomly selected to represent criminal law in the South and North in Nigeria. A perusal of the Criminal laws contained in both legislations reveals that for a critical discuss of the subject of unification, certain key/core issues have to be addressed. General Explanatory Notes The Criminal legislations of the South usually employ a mode of classification of offence which is related to the degree of punishment attached to the offence. Having considered the effect of the classification of offences along the line of the legislations in the South ( such as the power of private persons to arrest) vis a vis the absence of such classifications in the criminal legislations in the North, the project team is of the opinion that this rigid classification of offences is unnecessary and has avoided the classification of offences in such manner, leaving the severity of the offence to be determined by the punishment attached to it.

2 The sentencing provisions of both criminal legislations reveal heavy reliance on imprisonment and fine as punishment for offences, without due exploration of other sentencing options. Although this has not been reflected in the Proposed Unified document, it is suggested that Stake holders should explore the possibility of the engagement of the other sentencing options. Undoubtedly, both criminal legislation bear similarities which if identified and emphasised, will clarify to a large extent the areas which can be unified under the criminal legislation. In light of the above, the provisions of the Criminal legislations can be broadly classified as follows: Criminal Responsibility, Offences against public peace, public order and the administration of Justice, Offences against persons, Offences against property, and Other Miscellaneous offence. In considering these broad categories under which the offences can be classified, some key issues which have to be considered are: - The age of a child for the purpose of criminal responsibility, consent and special protection under the laws; - The idea of rape as a gender specific offence; - The extent of interference of criminal law in matters which may be regarded as private or moral issues such as abortions, drunkenness, - The theories and purpose of punishment The attached Proposed Unified Document is simply to lay the proper foundation for a robust deliberation of the subject matter.

3 The Proposed Unified Criminal Law Document Part One deals with general provisions that apply to the whole of the Criminal laws that follow subsequently. It is a combination of the provisions of Chapters I- VII of the Penal Code Act and Chapters 1-5 of the Criminal Law of Lagos State. CHAPTER 4 : PARTIES TO AN OFFENCE This is a unification of the provisions of the Penal Code Act on Joint Acts and Abetment (sections 79-94) and Parties to an Offence under the Criminal Law(sections ). Although the provisions are similarly worded, the provisions of the Criminal Law appears to be more encompassing apt in describing the position of parties to an offence which includes abettors. There is the provision for the recognition of the possibility of corporate criminal liability under the Unified Criminal Law, as included under section 20 of the Criminal Law, a trend is in tune with general modern development. Chapter 5: CRIMINAL RESPONSIBILITY This chapter basically covers the possible defences that may arise so as to reduce or eliminate criminal responsibility for an offence committed. Section 24: The provision of the Penal Code Act is its definition of what amounts to an accident in section 48 is preferred to that of section 24(1)& (2) of the Criminal Law because it requires the accident to have resulted from doing a lawful act in a lawful manner. This enables the defence to be available only to persons who in carrying out legitimate acts. Section 25: The requirement of exercise of power in good faith as provided under the Penal Code Act has been included in the Unification. Section 47 of the Penal Code Act relating to Acts done in pursuance of a court order has been deleted Section 26: Acts done in pursuant to the Judgment or Order of Court: This was originally provided by section 47 of the Penal Code Act. Although

4 not contained in the Criminal Law, it is regarded as a very important section as it removes fault/liability from persons acting on a judgment or order of Court which remains in force. Section 27: Claim made in good faith: This section which has been lifted from section 23 of the Criminal Law, is not contained in the Penal Code Act Section 28: Extra-ordinary emergencies: To rely on the defence, the accused must show that the act done was to prevent further harm or injury to his person or other persons, or property. The action of the accused is measured against the reaction of an ordinary person in the same circumstances. The Penal Code Act provided explicitly that where the action requires care and skill, the accused must have exercised the required care and skill. This appears to be unnecessary since there is already an objective standard by which the accused act or omissions are measured. Section 29: Immaturity: There appears to be no specific criteria applied by the codes in other to determine the age at which the defence of immaturity ceases to apply but it stands to reason that the exposure to modern technologies and westernisation at an early age, children realistically appear to lose their so called innocence much more earlier than age ten which was fervently canvassed for, as a reaction to the provisions of the former criminal code Act. It is suggested that the age of seven be reverted back to. Again, in other to protect children who genuinely have not attained maturity even at the age of ten, it is suggested that the presumption of innocence provision contained in the Penal Code Act, be re-introduced into the Criminal Law. Section 30: Acts of persons with unsound mind: The presumption of sanity as provided in Section 26 of the Criminal code should be adopted by the Penal code. Providing for a description of what it means to lack capacity appears to cover incidents of spasms, reflex actions, and convulsion and epileptic fits, taking care previous position where it was not recognised under the defence of insanity. Section 31: Intoxication: Section 44 of the Penal Code Act provides that a person is presumed to have the same knowledge which he would have if he

5 were not intoxicated. This provision which is irrebuttable appears to negate the possibility of the accused to rely on the defences of mistake or provocation. It is thus suggested that the Criminal Law provision as provided in section 29(1) is thus preferred Section 32: Acts done with Consent: The Criminal Law provides for consent in relation to specific offences such as rape. A modified provision of the Penal code Act as provided above should be adopted for unification purposes because it covers the general defence of consent better. Section 33: Acts which a person is compelled to do: The exclusion of the threat of grievous harm to the offender by the Penal Code is perplexing, considering the threat of grievous harm can in reality be considered as potent as a death threat. It is for this reason that the provision of the Criminal law on the defence is more acceptable. Section 35: Communication done in good faith: This section covering communications in good faith is not provided for in the Criminal Law. Part II: Offences against Public Order Chapter 6: UNLAWFUL SOCIETIES Section 36 & 37: Offences relating to Unlawful society: The Criminal Law is more detailed by providing for a definition of unlawful societies. The Criminal Law also includes the use of property by an unlawful society as an offence. For unification purposes, the punishment for the offence, which is imprisonment under both laws has not been included. Chapter 7: OFFENCES AGAINST PUBLIC PEACE Section 38-40: Unlawful Assembly: The provision of the Criminal Law on unlawful assembly is preferred over the Penal code Act because it appears to be more general and wider in scope and includes more definitions of terms

6 used. Again, the number of persons that can constitute an unlawful assembly is lower in the Criminal Law. Punishment for being armed with a deadly weapon during an unlawful assembly or continuing in an unlawful assembly which has been dispersed are not provided for under the Criminal Law. Sections 41-44: Riots: The provisions of both Acts relating to the general offence of riot are easily unified as the provisions are practically the same. However, the Penal Code Act, provides for specific offences relating to riots such as rioting armed with deadly weapon ( section 107) and joining an unlawful assembly that has been asked to disperse( section 110) which are not provided for under the Criminal Law. The Criminal Law also has offences not provided for under the Penal Code Act. Section 45-48: Preventing Breach of Peace: Although this provision is contained under the Assault in the Criminal Law, it appears to serve better purpose if placed under the section relating to breach of peace. Section 52-54: Wrongful removal and disclosure of documents: These sections deal with wrongful disclosure of information and use of documents which are official. The Penal Code Act terms these acts as breach of official trust (sections 98-99) and also tries to make a distinction between when communication is made to a foreign government and other situations. However, the provisions of the Criminal Law are detailed in its consideration of acts by a public officer in this regard. The Proposed unified criminal law tows the line of the Criminal Law, although it does not include the offence of disclosure of official secrets as a result of the provisions of the Freedom of Information Act CHAPTER 8: WRONGFUL DISCLOSURE AND REMOVAL OF DOCUMENTS Chapter 9: CORRUPTION AND ABUSE OF OFFICE

7 Sections : 55-63: The offence by or relating to public officials is contained in sections of the Penal Code and sections of the Criminal Law. Both criminal laws contain elaborate expansions of the offence bothering on corruption which this proposed unified laws have tried to consolidate The offence of abetment in section 117 of the Penal Code Act is easily addressed under the provisions of parties to an offence (Chapter 4 of the Unified laws). The provisions of section of the Penal Code Act which relate to administration of justice can conveniently be accommodated under the chapter relating to offences relating to administration of Justice. Some offence provided under the Criminal law in this chapter can easily be merged together, thereby reducing the number of offences contained in the Chapter. Chapter 10: OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE Chapter 11: UNLAWFUL RELEASE Section The provisions relating to escape from lawful custody and unlawful release from custody under both laws are similarly worded with almost the same punishment, making unification very possible and easy to accomplish. The offence of aiding prisoners escape contained in section of the Criminal Law can easily be subsumed under the unlawful release provision as such including it as a separate offence amounts to a surplus age Section 108 and 109 of the Criminal Law is similar to the provisions of sections 127 and 128 of the Penal Code Act. These provisions have been unified as included as sections 80 and 81 of the Unified Laws. The offence of removing property under lawful seizure which is contained in section 146 of the Penal Code Act is unified under this chapter of the Unified laws.

8 The offence of obstructing public officers in carrying out their duties as provided under section 117 of the Criminal Law and section 148 Penal Code Act seem to be general cover for various offences contained in both criminal laws such as the provisions of section 135, Penal Code Act which provides for intentionally preventing service of summons, orders or proceedings the provisions of section 144, Penal Code Act which provides for resistance of taking of property by lawful authority, and section 112 criminal Law which provides for obstructing judicial officers. A single unified provision in section 84 of the Unified Laws has been provided to cover these offences. The punishment provided under both the Penal Code Act and Criminal law are similar in terms of imprisonment although the difference in the amount of fine is significant. Chapter 12: OFFENCES RELATING TO RELIGIOUS WORSHIP Section Sections 210 of the Penal Code Act and of the Criminal Law provide for the prevention of insult to any religion and are thus very similar in their wordings. The offence of injuring or defiling a place of worship provided for under section 211 of the Penal Code Act can be covered easily by the provision of section 124 of the Criminal Law which provides for any act, which would include destroying or defiling a place of worship. Chapter 13: OFFENCES RELATING TO ORDEAL, WITCHCRAFT AND JUJU Section The Offences relating Ordeal, witchcraft and juju in both criminal laws are similarly worded with very few differences where the criminal law does not provide for the offence relating to cannibalism and possession of human head. It is strongly recommended that these sections should be retained in the unified laws.

9 A different section has been provided for the punishments for the various offences and due consideration has to be given to the punishment for the offences. Chapter 15: NUISANCE AND OTHER OFFENCES AGAINST PUBLIC HEALTH Section The offences of public nuisance are meant to cater for acts or omissions that cause a common injury or danger to the public. The provisions of the criminal laws are quite similar, making unification very possible. The punishments for the various offences have been separated from the general definition of the offence so as to allow for easy unification. The definition of Public nuisance as contained in the Penal Code Act has been adopted for the purposes of this unification as it provides a better explanation when compared to that provided by the Criminal Law, of what the offence as contained in the law covers. As a result of the seriousness of the offence of adulteration of drugs, the offence, which is not expressly provided for under the Criminal Law has been included in the Unified laws. The following sections have however not been included in the unified draft under this chapter basically due to the fact that corresponding or similar provisions where not found under both laws under consideration: Criminal Law- Section 159: dealing in diseased meat; Section 161: Communicating infectious disease to animals; Section 162: Burial in Houses; Section 163: Misconducts with regards to corpse; section 165 Criminal Law Use and sale of matches made with white/ yellow phosphorous; Penal Code Act-Section 197: Negligent conduct with respect to animal; Section 200: Obscene or indecent act; Section 202: Sale of obscene books; Section 203: Obscene songs

10 Chapter 16: ASSAULT Section of the Proposed unified criminal laws. While the Penal Code Act distinguishes between battery and assault in sections 262 and 264 of the Act respectively, the Criminal Law does not expressly separate assault and force. The approach of the Criminal Law in the general definition of the assault is preferred to that of the Penal Code Act as the assault is usually followed by battery and assault is used commonly to cover assault and battery. It is suggested that the distinction between assault and battery should be reflected in punishment as contained in sections 170 and 171 of the Criminal Law. Both the criminal Law and Penal Code Act have various categories of assault which should be maintained. Of particular interest is the provision of the Penal Code Act on assault or criminal force to deter public servants from the discharge of his duty. Section 172 of the Lagos Criminal Law provides for serious-assaults to protect persons in the execution of their lawful duties, including police officers. Obviously, the provision in the Criminal law protects persons in the course of their lawful duties, whether or not they are public servants. An amendment of the Penal code Act to include such persons would be preferred to the rather over-elaborated provisions of the Criminal Law as contained in section 172 The general provisions of Assault are wide enough to cover the specific provision provided under section 270 of the Penal Code Act relating to assault in an attempt to wrongfully confine an individual. The sections relating to execution of lawful duties as originally contained in sections of the Criminal Law, provides circumstances in which the use of assault would not be considered as an offence. These sections are not contained in the Penal Code Act but serves as an enhancement, if included in the proposed unified draft. Chapter 17: OFFENCE AFFECTING LIFE

11 Section Murder/ homicide punishable with death in every jurisdiction in Nigeria is regarded as a very serious offence. The provisions of the Criminal law fundamentally deviated from the provisions of the original criminal Code Act, by removing the idea of recklessness as a mens rea for the commission for the offence of murder, making it very easy for the unification of the offence of murder as it is presented under both criminal laws. Although it the offence of attempted murder can easily be the sections dealing with attempts, the gravity of the offence makes it desirable that specific provisions should be made for them. The punishment for attempted murder under both laws is life imprisonment, although the Penal Code Act also provides for a lesser term or and a fine. It is suggested that life imprisonment is an apt punishment for the offence, considering that one of the core ingredient of the offence is intent to kill. The Penal Code Act also provides a separate offence of attempt to commit culpable homicide not punishable with death, which is in essence attempted manslaughter. A similar result of the offence of attempted manslaughter can be achieved by a reading of the general law on attempt contained section 4 and manslaughter but it seems more convenient to have a specific section on attempted manslaughter. The provision of the Penal Code Act is thus proposed for the offence of manslaughter in the Criminal Law. The proposed unification for the offence of attempted suicide is as contained in sections 232 and 233 of the Criminal Law. The inclusion of a hospitalisation order for a person who attempts to kill himself as contained in the Criminal Law, is a recognition of the fact that the person attempting suicide is disturbed. The offence of death of quick unborn covered under section 236 of the Penal Code Act, can conveniently be provided for under the section relating to preventing a child from being born alive Chapter 18: OFFENCES ENDANGERING LIFE

12 Sections These are offences where the offender does act which causes harm to the victim but not causing death. Reckless and negligent acts which cause harm or endanger human life are provided for under both criminal laws with the Criminal Law providing additionally for acts which ought to be the duty of the offender, done negligently or recklessly, carrying a more severe punishment than ordinary acts which are deemed reckless or negligent. The Proposed unified law has included this provision of the Criminal Law. The offences relating to failure to provide necessaries and abandonment of children under section 245 and 247 of the Criminal law have been moved to the Chapter relating to Duties and preservation of life under the Proposed Unified Laws. The punishments provided under most of the offences are retained under the Proposed Unified law basically because most of the offences where contained in both criminal laws are similar and appear to be reasonable. However, this does not preclude a re-visit of the punishment. Chapter 19: OFFENCE AGAINST LIBERTY Section The proposed unification reflects more of the offence of kidnapping as contained in the Criminal Law, with an inclusion of the definition of unlawful capture. An inclusion for a more severe punishment in cases where there is demand for ransom helps to show the severity of the offence when it is conducted in this particular manner. The inclusion of a specific section of deprivation of liberty is to cater for all other instances of deprivation of liberty which may not fall neatly within the definition of kidnapping.

13 Chapter 20: OFFENCES RELATING TO DUTIES AND PRESERVATION OF HUMAN LIFE Chapter 21: SEXUAL OFFENCE AND INDECENT OFFENCES Section The Nigerian Criminal Laws relating to sexual offences cover private sexual behaviour which is considered as offensive against the cultural and moral values of the society in general. Even though it would be impossible to accommodate all divergent view on morality within criminal laws, it is opined that public, corruptive and violent manifestation of sexual behaviour especially where it affects the young who cannot fully appreciate the nature of sexual activity, should continue to attract punishment under criminal law. The Offences have been drafted to be as gender neutral as possible, bearing in mind that either sex can be the subject of sexual of violation. The offence of attempt which has been provided under both criminal laws can be accommodated under the general rule of attempt and as such has not been specifically included. For offences relating sexual relations against the natural order of nature, whether with a man, woman or animal, once they are done in private by consenting adults, it should not be criminalised. This is because once parties consent, there is realistically no person to make a complaint and as such there is actually no effective way of enforcing the provisions. Not criminalising these offences does not necessarily means the lowering of moral standard in this regard but rather a relegation of these offences to be dealt with by social and cultural taboos. The offences relating to abduction has been properly delineated by distinguishing kidnapping from abduction.

14 The offence of buying and selling minors for immoral purposes is separated from the general section due to the severity of the offence. CHAPTER 22: STEALING Section Both Penal Code Act and the Criminal Law provide for the general offence of stealing ( the offence is referred to as theft under the Penal Code Act), with special punishment in relation to specific events that are regarded as stealing. These events as well as its punishments under the laws have been included in the draft. The offences of criminal breach of trust and criminal misappropriation which are provided for under sections 311 and 308 of the Penal Code Act, with the adoption of a the more robust definition of stealing under the Criminal law has been appropriately dealt with (see section 283(4)). An inclusion of these offences would therefore amount to duplication and should be thus expunged. The provision of the Penal Code Act for the offence of Robbery as either extortion or theft is jettisoned for a version contained in the Criminal Law which simply reflects the main ingredient of the offence which is the use of force or threat to use force. A difference provision is made for the offence of Extortion which is demanding property with written threats of injury or damage. The provisions of the Penal Code Act as contained in section has been accommodated under offence of demanding with menaces.

15 The offence of attempt to commit robbery which was provided under both criminal laws can be accommodated under the general rule of attempt and as such has not been specifically included. The Offence of Brigandage under section 297 of the Penal Code Act, which is actually robbery committed by five or more persons is adequately covered by the provisions of the law relating to parties to an offence. The offence of unlawful harassment of debtors was introduced in the Criminal Law in response to the modern trends adopted by citizens in trying to recover debts. CHAPTER 23: BURGLARY, HOUSE BREAKING AND LIKE OFFENCES Section The offence of house trespass and related offences in the Penal Code Act are similar to that contained in the Criminal Law. However, the provisions of the Criminal Law are simpler and easier to grasp, hence, the adoption of its provision in the Unified Laws. The specific offence of breaking into a place of worship and committing a felony contained in section 309 of the Criminal Law can easily be covered under the offence of Breaking into a building and committing an offence( formerly contained in section 307 Criminal Law) with the same punishment provided for.. Hence, there is no need to provide a specific section for the offence CHAPTER 24 : FALSE PRETENCE Section A

16 The provisions relating to Cheating under the Penal Code Act are similar to the provisions relating to the offence of Obtaining by False pretence under the Criminal Law. The Provisions of the Criminal Law are however wider in scope and more encompassing. The provision of other related offences and cheating in Examination contained only in the Criminal Law, is a response to the present day realities where persons are fraudulently deprived of their property in this peculiar manner. CHAPTER 26: FRAUDS BY TRUSTEES AND OFFICERS OF COMPANIES AND CORPORATIONS Section The offence of falsifying accounts as contained in section 371 of the Penal Code Act under the chapter relating to Forgery has been moved to this chapter for ease of reference and understanding. CHAPTER 27: CRIMINAL DAMAGE TO PROPERTY Section Described as Mischief in the Penal Code Act and Criminal Damage to Property under the Criminal Law, the offences contained in this chapter cover both public and private property. Most of the sections as contained under the Criminal Law and Penal Code Act have been harmonised under this draft. The offence of sand dealing and dredging as contained in the Criminal Law has also been included in this draft because sand dredging is regarded as having serious environmental impact if not properly curtailed. CHAPTER 28: FORGERY Section CHAPTER 29: IMPERSONATION Section

17 Section 321 & 324 of the Penal Code Act provides for the offence of cheating by impersonation as well as its punishment. It is suggested by this draft that the offence contained in the above mentioned sections are better placed under the chapter of impersonation as provided under the Criminal Law. While the Penal Code Act provides for a punishment of five years with or without an option of fine, the Criminal Law provides for three years. It is suggested that with the prevalence of the offence in Nigeria, the higher punishment should be used. In the case of impersonation that leads to the delivery of property to the impersonator, both section 378(2) of the Criminal Law and section 325 of the Penal Code Act provides for a imprisonment for a period of seven years, while the Penal Code Act provides for the option of fine. Owing to the seriousness of the offence, it is suggested that the punishment be retained without the option of fine. CHAPTER 31: ELECTRONIC DATA CHAPTER 32: SPECIALLY AGGRAVATED OFFENCES CHAPTER 33: CRUELTY TO ANIMALS CHAPTER 34: OFFENCES IN RELATION TO FERRIES AND JETTIES CHAPTER 35: ATTEMPTS Section The offence of Criminal Conspiracy is similarly worded in both laws, although the provisions in the Criminal Law are more comprehensive than that provided for in the Penal Code Act. The Proposed draft avoids the use of felony or misdemeanour for simplicity sake. CHAPTER 36: CONSPIRACIES Section

18 The provisions of the Criminal Law and Penal Code Act on Conspiracies are similar hence there is no difficulty in carrying out the unification of this aspect. However, the scope of the conspiracy as provided under the Criminal Law is a little bit wider than that provided under the Penal Code Act (for example, the provision of the law relating to trade disputes) CHAPTER 37: ACCESSORIES AFTER THE FACT Section Offences not unified Property and other Marks:: Section , Penal Code Act Offences relating to Marriage and incest: Sections Penal Code Act Defamation: Chapter XXIV, Penal Code Act Vagabonds: Chapter XXV (Section ), Penal Code Act