The Principles of Legality

In Nigeria’s Contemporary Justice

System:

Myth or Reality

Ola Babalola

One must at the outset have a clear perception of what the Principle of

Legality actually is before one can discuss its reality or idealism. A Principle is

defined as a source or origin that from which anything proceeds i.e. A fundamental

substance or the ultimate element or cause. The Encyclopedia Britannica (2008

edition) defines Legality as “the state or quality of being legal; lawfulness,

adherence to or observance of the law.” Legality is therefore a requirement

enjoined by law. What then are the Principles of Legality? The Principles of Legality

are an internationally acceptable standard of conformity required fore mostly in

criminal law though they can also be found in civil and administrative law. They can

be described as the principles that constitute the rule of law but with special

application to their penal status. According to Jerome Hall in his book ‘General

Principles of Criminal law (1981),

“The principle of legality is, first of all, a summation of the form of all

the penal laws, of what distinguishes them as positive laws from all other

rules; and it qualifies and is presupposed by everything else in penal

theory.”

The Principle of Legality is a legal ideal that requires the clarity, ambiguity and

understandability of all laws. It requires decision makers to resolve disputes by

applying legal rules that have been declared beforehand, and not to alter the legal

situation retrospectively by discretionary, arbitrary, illegal or extra-legal departures

from the written or established law. In criminal law, it can be seen as the general

prohibition on the imposition of criminal sanctions for acts or that were not criminal

at the time of their omission or commission. The principles of legality are an essential

and vital part of the criminal legal system of most or all civilized democratic states.

These principles evolved after the world war two even though certain elements of it

were already evident before the war. That was a point tin time when there was

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awareness for people to come together and fight against discretionary use of power by

the government and its agencies. After world war two, trials pertaining to criminal

offences and for war crimes were conducted in such a manner that these principles

were not sidelined or trampled upon.

The principles of legality have as its contents four major elements. These elements are

that

1. No one shall be punished for an offense that is not in existence at the time of

the commission or omission of the act.

2. A heavier punishment shall not be imposed other than punishment stipulated

or contained in a written.

3. Everyone tried for a criminal offence shall be presumed innocent until proven

guilty.

4. Free and fair trial.

The elements of this principle are contained in the works of intellectuals and writers

such as Montesquieu, A.V Dicey and Feuerbach. These provisions sought to prevent

the government and its agents from using discretionary power against people like

protesters and rights activists who were usually perceived by the government as

enemies of the state. It also ensured that judges in delivering judgment on criminal

cases before them apply the written laws as they are contained in the acts or laws

governing the realm.

The principle of legality is evident in the constitutions and laws of various countries

and is also included in various international declarations. It is a vital principle

particular in the league of democratic and democratizing nations of the world today.

In Nigeria for example, it is embedded in the 1999 constitution and its presence in the

“grundnorm” of the country further emphasizes its importance. In Cap IV titled

fundamental rights, S33 to S46 embody these principles. S36 (1) for instance states

  “In the determination of his civil rights and obligations, including

any question or determination by or against any government or

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authority, a person shall be entitled to a fair hearing within a

reasonable time by a court or other tribunal established by law and

constituted in such manner as to secure its independence and

impartiality.”

Other sections discuss such fundamental human rights such as freedom of expression

(S39i), freedom of association (S40i), a person shall not be convicted of a criminal

offence unless that offence is defined and the penalty therefore is prescribed in a

written law (S36xii), right not be punished twice for the same offence, presumption of

innocence till guilt is established and many more.

Outside the shores of Nigeria, these principles are held to be sacrosanct and can also

found in its criminal aspects in the Universal Declaration of Human Rights of 1948

which states in article 2, page 2 that

“No one shall be held guilty of any penal offence on account

of any penal act or omission which did not constitute a penal offence

at the time it was committed. Nor shall a heavier penalty be imposed

other than the one applicable at the time the offense was committed”

The European Union Charter of Fundamental Rights in Articles 47 titled “Right

to an Effective Remedy and a Fair Trial” states that everyone whose rights and

freedoms guaranteed by the law of the Union are violated has the right to an effective

remedy before a tribunal. That everyone is entitled to a fair and public hearing within

a reasonable time by an independent and impartial tribunal previously established by

law. Everyone shall have the possibility of being advised, defended and represented

and that legal aid shall be made available to those who lack sufficient resources

insofar as such aid is necessary to ensure effective access to justice. Article 49 of the

same charter titled Principles of legality and Proportionality of Criminal Offences

and Penalties respectively states in S1 and S3 that

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1. No one shall be held guilty of any criminal offence on account of

any act or omission which did not constitute a criminal offence under

national law or international law at the time when it was committed.

Nor shall a heavier penalty be imposed than that which was

applicable at the time the criminal offence was committed. If,

subsequent to the commission of a criminal offence, the law provides

for a lighter penalty, that penalty shall be applicable.

3. The severity of penalties must not be disproportionate to the

criminal offence.

To buttress this further, Part 3 of the statutes of the International Criminal Court

title ‘General Principles of Criminal Law states in Article 22(I & II) that a person

shall not be criminally responsible under this Statute unless the conduct in question

constitutes, at the time it takes place, a crime within the jurisdiction of the Court. In

case of ambiguity, the definition shall be interpreted in favour of the person being

investigated, prosecuted or convicted. Article 24 reads

 1.  No person shall be criminally responsible under this Statute for conduct

prior to the entry into force of the Statute.

 

2. In the event of a change in the law applicable to a given case prior to a

final judgement, the law more favourable to the person being investigated,

prosecuted or convicted shall apply.

 

  One contradiction with Nigerian statutes is the absence of the Immunity clause with

regards to official capacity of individuals. Article 27 of the ICC statute states that

1. This Statute shall apply equally to all persons without any distinction

based on official capacity. In particular, official capacity as a Head of

State or Government, a member of a Government or parliament, an

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elected representative or a government official shall in no case exempt a

person from criminal responsibility under this Statute, nor shall it, in

and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the

official capacity of a person, whether under national or international

law, shall not bar the Court from exercising its jurisdiction over such a

person.

It becomes impossible for persons to escape criminal trial on grounds of immunity

within the international community. 

  Summarily, these principles are primarily concerned with the form which criminal

law must take. When there is a breach of the law by persons corporate or individual,

the procedures to be taken and sanctions applicable must not be beyond that already

specified by the law. The principle is also thought to be violated when the sanctions

for a particular crime are increased with retrospective effect. However, with

particular reference to Nigeria, it becomes necessary to pay special attention to these

principles and to distinguish their presence in Nigerian law either as a myth or as

reality, either as idealism or as fact. To adequately answer this question, one must

juxtapose some of these principles alongside with contemporary issues and events in

modern Nigeria and see if they have some weight in the Nigerian society or if they

are just meaningless words to which there is no adherence.

In the case of Michael Udo Udo v. The State (1988) 3NWLR, P317 to 346,

it was argued whether the refusal of an adjournment by the court when requested for

by the accused’s counsel and the court thereafter taking the prosecution’s witnesses

in absence of the accused’s counsel constitute a denial of fair hearing entrenched in

S33 (vi) of the 1979 constitution of Nigeria (the same provision is found in S36 (I) of

the 1999 constitution)? The counsel of the appellant who was charged for murder

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sought an adjournment because he was otherwise engaged for the day, the trial judge

refused to adjourn and proceeded with trial even in the absence of the appellant’s

counsel. During trial, two prosecution witnesses were taken and the appellant was

asked to cross-examine them. It was found that prior to this, the prosecution had

asked for an adjournment twelve times and it was granted all twelve times while the

appellant’s sole application had been refused. Counsel to the appellant also

displayed a lackadaisical attitude because he was not sure his professional fees would

be paid. It was unanimously held that the appellant had not at all received a fair

hearing, trial procedure being incompatible with S33 (6) of the then 1979

constitution which states that

‘….a person shall be entitled to a fair hearing within a reasonable time by a

court or other tribunal established by law and constituted in such manner

as to secure its independence and impartiality’’.

Also violated was S352 of the Criminal Procedure Law of Eastern Nigeria which

states that where a person is accused of a capital offence, the state shall be

represented by a legal officer, state counsel or legal practitioner and if the accused is

not defended by a legal practitioner, the state shall assign a legal practitioner to him.

In Mamman Ibrahim V the State (1993) 2NWLR), P735 the issues were those

of right to counsel of one’s choice (S36 (6c) of the 1999 constitution) and proof

beyond reasonable doubt (S36 (5) of the 1999 constitution). In this case the

appellant charged with murder was already undergoing trial in Birnin Kebbi when

the case was transferred to Sokoto. Appellant’s counsel applied to withdraw from the

case because of travelling expenses and was allowed. Another counsel was now

given to the appellant without his consultation and approval. Prosecution had also

called four witnesses before the case was transferred. At Sokoto, prosecution called a

fifth and final witness and the new counsel to the appellant declined to cross examine

any or put appellant in the defense. Appellant was convicted and filed an appeal. At

the Higher court, it was held that by provision of S33(6) of the 1979 constitution,

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any person charged with a criminal offence is entitled to defend himself in

person or by a legal practitioner of his choice and also S186 of the Criminal

Procedure Code provides ‘’that any person charged with murder must be

defended by a legal practitioner of his choice throughout the proceedings’’. It

was further held that when a person on trial for murder is assigned a counsel by the

state, his approval must be obtained. Failure to do so nullifies the trial. Finally on

proof of innocence beyond reasonable doubt, it was held that if at the end of the trial,

there still lingers some in the mind of the trial judge as to the guilt of the accused, he

should acquit the accused since the import of such a doubt is that the prosecution has

failed to discharge the heavy burden of proof imposed by law.

With the above cases, it begins to be become clear that the principle of legality in

Nigeria can hardly be described as a myth. It is a weighty matter in the law of the

country and they are principles that are adhered too. The principles of legality can

therefore be described as a reality in Nigerian criminal law. Similarly the principles

of legality were raised in the case of Samuel Erekanure v the State (1995) 5NWLR

, P387where adjudication finally ended in the Supreme Court of Nigeria. The

accused on trial for murder was convicted and sentenced to death. This decision was

likewise held at the Court of Appeal. On appeal to the supreme Court, the appellant

contended that the trial judge at the lower courts adhered to the provision of S215 of

the Criminal procedure Law and S33 (6ii) of the 1979 constitution whose provisions

are now to be found in S36 (6a) of the 1999 constitution which state that ‘every

person charged with a criminal offence shall be entitled to be informed promptly in

the language that he/she understands and in detail of the nature of the offence.’

Reading his Judgment, Belgore JSC said that

‘’in a criminal trial, where for instance no officer of the court is capable

of interpreting the charge in the language that the accused understands,

a sworn interpreter must be produced to explain the charge’’ and that

‘’an accused person who does not know or understand the details of the

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nature of the offense with which he is charged and who was subsequently

convicted cannot be said to have had a fair trial.’’ (P.393).

Similar views were held in the following cases Kjubo V the state (1988) 1NWLR

(pt.73) 721, Eyorokoromo v the state (1979) 6-9 SC.3, Oyediran v Republic

(1967) NMLR 112.

S36 (8) of the 1999 constitution of Nigeria states that “’

No person shall be held to be guilty of a criminal offence on account of

any act or omission that did not, at the time it took place, constitute such

an offence, and no penalty shall be imposed for any criminal offence

heavier than the penalty in force at the time the offence was committed”.

It tallies with the provision made in article 49 of the European Union Charter of

Human Rights and also agrees with the Rome Statute of the International Criminal

Court. In the high profile and much celebrated case of Safiya v the state where the

accused under the controversial introduction of Shari’ah law had been sentenced to

death for committing adultery. While a lot of controversy raged over the morality of

the law and its appropriateness in modern society, it occurred to few that the law

legalizing Shari’ah in the state had been passed in December of the year while the

offence had been committed in September of the same year. As such she was able to

seek succor under S36 (8) of the 1999 constitution. One of the essential principles of

legality is that laws cannot be made retrospective. The retroactive application of laws

is forbidden. This was obviously pointed in the foreign case of Keeler v Superior

Court in the Supreme Court of California. The defendant had assaulted a pregnant

woman and in the process had caused damage to her unborn child causing it to be

premature delivery, hence a stillbirth. Among the charges brought against him was

the charge of murder. It was held that in light of the common law of the state,

Only a child who has been born alive can be murdered. Since the child was

born dead, the defendant cannot be accused of murder.

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Since the nature of the crime was not specified by statute, the law forbids also

the conviction of a crime not specified by statute.

Statutes are meant to be interpreted in the manner most favorable to the

defendant.

No one can be convicted of an act they committed before that act was a crime.

The principles of legality have not altogether enjoyed plain sailing in Nigeria.

Though they are often times present, there are times when they are blatantly

disregarded or seemingly disregarded. This is because there is largely an ignorance

of the law. One can only call to mind the Latin maxim “Ignorantia legis non

excusat’’ which says Ignorance of the law is no excuse. In the same vain strict

adherence to the principles of legality in the face of factors that militate against it is

not in the best interest of any democratic nation. This makes it often seem like these

principles do not exist in Nigeria. S45 (1) provides that for periods where these

principles can temporarily be suspended in the overall interest of the state and the

society. In this section emphasis is made on when the fundamental rights in the

preceding sections can be suspended

“(a) in the interest of defence, public safety, public order, public morality

or public health; (b) or for the purpose of protecting the rights and

freedom or other persons.

These measures that derogate from the written law can only be taken in times are

reasonably justifiable for the purpose of dealing with the situation that exists during

that period of emergency. Specific requirements must also be met before such

measures can be taken. This is why it may seem that the principles of legality were

not visible in the cases of MASSOB leader Ralph Uwazurike and six of his deputies,

who were arrested in October 2005 on treason charges, remained in detention a very

long period thus violating S35 (4) 0f the 1999 constitution as they awaited trial

which states thus

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‘Any person who is arrested or detained shall be brought before a court of

law within a reasonable time”.

Public pre-trial hearings were conducted in the case, but no announcements were

made about the progress of the trial, which had been scheduled for September 2005.

In the same vein several members of the Odua People’s Congress OPC continued

to be detained for most of the year on charges stemming from October 2005 clashes

between rival OPC factions, Mujaheed Asari Dokubo, the leader of the Niger Delta

People's Volunteer Force, remained in detention for over six months without trial

following his October 2005 arrest on treason charges. His presence in the Niger-

Delta region resulted in indiscriminate killings, kidnappings and the destruction of

private and public properties. It could hardly be established if he was a rights activist

or a terrorist. His actions were considered inimical to the interests of the state and as

a result of this, the principles of legality were suspended. Extreme measures were

required because the principal characters involved constituted themselves as a

menace to society and their actions often resulted in a breakdown of law and order.

In the case of MASSOB leader, Ralph Uwazurike, his actions can be described as

treasonable since he more or less tried to create a parallel government in the society

and made international claims at secession. His group flew a national flag different

from the Nigerian national flag and was variously accused of abducting, torturing

and killing several people and even having gun battles with the police. His group

which was erstwhile assumed the cloak of non violence is now seen by former

advocates of his cause as very violent. This situation can provide for temporary

suspension of the principles of legality and it did. Various other countries have taken

this measure. An example is the United States of America. In its recent war on

terrorism, the traditional principles of legality have been suspended with the

establishment of the Guantanamo Prison in Cuba. In this case, persons suspected or

expected to be threats are arrested and in most cases denied trial for periods of over

year. President Bush on November 13, 2001 claimed authority to hold suspected

terrorists indefinitely without due process. In the case of Hamdan v Rumsfeld, No.

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04-5393 (D.C. Dec. 8, 2004), the defence cited the Supreme Court’s decision in The

Prize case which state that ‘The President as Commander in chief is bound to

accept military challenge without waiting for any special legislative authority”.

It also cited Quirin’s case in which one of eight defendants had been held for three

and a half years before charges were brought against him’. The legality and morality

of this action can only be justified in lieu of the September 11 attacks on the

American state. Whether this act can be described as the blatant denial, on

discriminatory grounds, of a fundamental principle of legality is a question only a

legal moralist can answer. These criterions may serve as a basis to identify what can

be constitutive of persecution as a crime. Clearly Nigeria is not isolated when it

considers that a principle of legality is antagonistic to the existence of the state.

This is not to presume that the state is entirely innocent whenever the

principles of legality are bypassed or abused. In the Nigerian state, it is often

selfishly, arbitrarily and extra-legally suspended or disregarded by public officials

without any cogent reason. This has resulted in the abuse of office predominantly by

officials of the state, and the police and a flagrant refusal to obey judicial

pronouncements. S33 of 1999 constitution of Nigeria states

‘’Every person has a right to life, and no one shall be deprived

intentionally of his life, save in execution of the sentence of a court in

respect of a criminal offence of which he/she has been found guilty’’

Article 4 of the African Charter on human and peoples’ Rights states further that

‘’Human rights are inviolable. Every human being shall be

entitled to respect for his life and the integrity of his person. No one may

be arbitrarily deprived of this right”.

Article 6 (1) of the International Covenant on Civil and Fundamental rights states

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Every human being has the inherent right to life. This right shall be

protected by law. No one shall be arbitrarily deprived of his life’

Despite the constitutional protection of this right, cases of extra judicial, summary

and arbitrary executions by the Police and other law enforcement agencies are still

prevalent in Nigeria. On March 2nd, 2005, Godwin Anuka was shot dead by police

Constable Vincent Achuku for refusing to pay a bribe. The conductor was said to

have pleaded with the police constable to allow him to continue on his journey and

that on his return, he would pay the demanded bribe but in rage the constable cocked

his rifle and shot him dead. At the state police headquarters in Makurdi, the arms

issued to officers were crosschecked and it was found that Constable Vincent

Achuku had expounded one round of ammunition issued to him. Charges were made

against him and then subjected to an orderly room trial after which he was dismissed

from the police force. However, criminal charges were never brought against him.

Furthermore, on September 7, 2005, Samuel Obi, a twenty-six year old student of the

University of Nigeria was arrested by the Police officers from the Nsukka area

Command at Nsukka. He was detained and accused of being a member of Massob

“Movement for the actualisation of the Sovereign State of Biafra”. He denied this

allegation. On questioning, the Faculty Officer for the department of Police Science

UNN, Pat (surname not mentioned) was interviewed and he confirmed that Samuel

was a model student and level headed. Despite further investigation, nothing

incriminating was found on Samuel or among his possessions but the Police still held

on him. Their claim was that Samuel was arrested alongside many others at an

unauthorized Massob meeting and though the Nsukka Police Area Commander Mr.

Salami Ahmed later admitted that some persons admitted may not have been

members of Massob, all efforts to release Samuel Obi have been in vain and he was

only released seven months after his arrest. This is denial of S35 (4) of the 1999

constitution

Any person who is arrested or detained in accordance with subsection

(1) (c) of this section shall be brought before a court of law within a

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reasonable time, and if he is not tried within a period of - two months

from the date of his arrest or detention in the case of a person who is in

custody or is not entitled to bail; or three months from the date of his

arrest or detention in the case of a person who has been released on bail,

he shall be released either unconditionally or upon such conditions as

are reasonably necessary to ensure that he appears for trial at a later

date.

S36 (4) of the 1999 constitution which guarantees that any person charged with a

criminal offence shall, unless the charge is withdrawn, be entitled to a fair hearing in

public within a reasonable time by a court or tribunal.

Access to Justice has also been a deterrent to the principles of legality in Nigeria.

According to the National Commission on Human Rights, there are a host of people

in Nigerian prisons and also on death row never had legal representation in the

course of their trial and were not assigned one by the state. This was discovered in

the course of several interviews conduct with the inmates in the prisons. This further

negates the right to fair hearing and the right to legal counsel and assignation of legal

counsel. The cases of Halima Audu and Hussaina Ibrahim are rather pathetic in that

the former aged seventy years old was charged for murder and ordered to be

remanded in prison by a Magistrate Court at Zoo road, Kano. She has been awaiting

trial for as long as five years and has never been assigned legal representation. The

latter, a twenty-five year married woman, who is also meant to stand trial for

culpable punishable with death together with Halima Audu has also spent more than

five years in custody awaiting trial. These are clear violations of S35 (4) of the 1999

Constitution and S36 (4) of the same constitution. It is also a clear violation of article

47 of the European charter on Fundamental Rights

The principles of legality to a certain extent are evident in Nigeria. The cases

mentioned which adjudicated upon clearly reflects this. They cannot be regarded as a

myth and. They are to be found in the laws of the country and their practicability is

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often evident in the law courts. On the other hand, they have not yet reached their

full maturity and still have along way to go before this is achievable. Illegal abuse of

the principles when juxtaposed with its upholding and legal suspension can at is best

regarded as sixty-forty. Conversely, one must not forget that Nigeria has only just

begun its journey to Utopia and it is a democratizing nation and not a democratic

nation

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Reference:

1. 1999 Constitution of the Federal Republic of Nigeria

2. European Charter on Fundamental Rights ECHR, art 47, 48, 49

3. Rome Statutes of the International criminal Court. Pt 3, art22, 23

24,27

4. African Charter on Human and People’s Rights

5. The State of Human Rights in Nigeria 2006 - 2006: A Report on

Human Rights violation. Pub. by the National commission on

Human Rights

6. International Covenant on Civil and Political Rights

7. Erekanure v The State(1993) 5NWLR, 385 at389

8. Mamman Ibrahim v The State 1993) 2NWLR), P735

9. Michael Udo Udo v. The State (1988) 3NWLR, P317 to 346,

10. Oyediran v Republic, (1967) NMLR 112.

11. Hamdan v Rumsfeld, No. 04-5393 (D.C. Dec. 8, 2004)

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