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

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

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 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

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

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

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

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

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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
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).

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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.
• Since the nature of the crime was not specified by statute, the law forbids also
the conviction of a crime not specified by statute.

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• 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

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

law within a reasonable time”.

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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.
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”.

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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

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’

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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
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

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 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
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

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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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