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Criminal Law > Indepth "Criminal Law in Nigeria in the Last 53 years: Trends and Prospects" > Flashcards

Indepth "Criminal Law in Nigeria in the Last 53 years: Trends and Prospects" Flashcards

1
Q

What is the fundamental role of criminal law in society, according to the article?

A

Criminal law is crucial for maintaining law and order. It signals societal disapproval of actions and omissions that harm society and violate moral norms worthy of legal protection. It must evolve with society and respond to contemporary realities.

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2
Q

What marked a turning point in the development of Nigerian criminal law?

A

Nigeria’s independence from Britain in 1960. However, the influence of British colonial heritage remained significant.

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3
Q

What was the state of Nigerian substantive criminal law post-independence?

A

It largely retained English concepts of criminal responsibility and principles, with the exception of the Northern States (and to a lesser extent, Lagos State). There was, however, significant legislative activity at the federal level.

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4
Q

What is the central objective of Bello’s paper?

A

To examine how legislative powers used to enact criminal laws in Nigeria have responded to emerging realities, both domestically and internationally.

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5
Q

Where did the legislative competence of the Parliament of the Federation of Nigeria and the Regional Legislatures originate in 1960?

A

The Constitution of the Federation of Nigeria 1960 (‘1960 Constitution’).

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6
Q

What power did the 1960 Constitution grant to the Parliament?

A

The power to make laws for the peace, order, and good government of the Federation.

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7
Q

What kind of legislative activity occurred at the federal level post-independence?

A

“Tremendous legislative activity” occurred with respect to criminal legislation falling within federal legislative powers.

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8
Q

What activity happened at the state level?

A

Legislative activity also occurred at the state level.

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9
Q

What did the author observe about legislative initiatives at both the Federal and State levels?

A

A common trend was noticeable, despite differences in the scale of reform.

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10
Q

What is the key question examined in the article regarding responses to issues?

A

The extent to which developments in substantive criminal law at the federal and state levels have responded to domestic and international criminal law issues.

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11
Q

What does the final section of the article contain?

A

The conclusion and projections for the future of criminal law in Nigeria.

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12
Q

What is ‘substantive criminal law’?

A

The part of the law that defines crimes and their punishments, as opposed to procedural law (how cases are handled).

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13
Q

What is the significance of 1960 in Nigerian legal history?

A

It marks Nigeria’s independence and the beginning of a new era in its legal development, though colonial influences persisted.

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14
Q

What is legal pluralism?

A

The existence of multiple legal systems within a single jurisdiction (e.g., customary law and English-derived law).

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15
Q

What was the source of legislative competence for criminal laws in Nigeria in 1960?

A

The Constitution of the Federation of Nigeria 1960 (“1960 Constitution”).

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16
Q

What general power did the 1960 Constitution give to the Parliament of the Federation?

A

The power to make laws for the peace, order, and good government of the Federation regarding matters included in the Legislative Lists.

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17
Q

What were the two main Legislative Lists established by the 1960 Constitution?

A

The Exclusive Legislative List and the Concurrent Legislative List.

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18
Q

What was the legislative power of the Regions (later States) under the 1960 Constitution?

A

They could make laws on matters not included in the Exclusive Legislative List and on matters listed on the Concurrent Legislative List.

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19
Q

What were matters not listed in either the Exclusive or Concurrent Lists called, and who had legislative competence over them?

A

They fell under the Residual Legislative List and were within the competence of the Regions.

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20
Q

What was an important addition to the Parliament’s legislative powers?

A

Its powers extended to any matter incidental or supplementary to any matter referred to in the Exclusive Legislative List. This also included the power to create offenses related to matters on both the Exclusive and Concurrent Lists.

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21
Q

Was the power to create offenses explicitly mentioned as a separate power in the Exclusive or Concurrent Lists?

A

No. This implied that the power to create offenses generally fell within the legislative competence of the Regions.

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22
Q

What specific types of offenses fell within the legislative competence of the Parliament under the 1960 Constitution?

A

(a) Offenses against the Nigerian State or the Federal Government, its agencies, functionaries, or property.
(b) Offenses against public order and public safety (excluding offenses against regional/state governments).
(c) Creation of criminal offenses related to matters on the Exclusive Legislative List.
(d) Creation of offenses related to matters on the Concurrent Legislative List.

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23
Q

What was the general trend regarding the sharing of legislative powers in later Nigerian Constitutions (1963, 1979, and 1999)?

A

These constitutions retained the basic scheme of sharing legislative powers, empowering the Federal Government to legislate solely on matters in the Exclusive Legislative List and jointly with the States on matters in the Concurrent Legislative List (subject to federal laws covering the field). States retained the power to legislate on matters not in the Exclusive List.

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24
Q

Did the 1999 Constitution change the fundamental distribution of legislative power over crimes?

A

No, it largely retained the previous system, with States having the power to legislate on crimes generally.

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25
What is the landmark case concerning the sharing of legislative powers over criminal laws under the 1999 Constitution?
Attorney General of Ondo State v Attorney General of the Federation.
26
What was the central issue in the Attorney General of the Federation v. Attorney General of Ondo State case?
Whether the National Assembly had the legislative competence to enact the Corrupt Practices and Other Related Offences Act 2000 (ICPC Act).
27
What was the Supreme Court's decision regarding the constitutionality of the ICPC Act?
The Supreme Court unanimously upheld the constitutionality of the ICPC Act.
28
What did the Court hold regarding the legislative powers of Federal and State Governments concerning corruption?
The Court held that both Federal and State Governments have concurrent powers to prohibit corrupt practices.
29
How did the Court interpret the word 'State' in Section 15(5) of the 1999 Constitution?
The Court construed 'State' in Section 15(5) (imposing an obligation to abolish corruption) to include Federal, State, and Local Governments.
30
What is the implication of the Court's decision regarding legislative competence over corruption?
Both the National Assembly (Federal) and the Houses of Assembly of the States can make laws on corruption.
31
What happens in case of conflict between Federal and State legislation on corruption?
If a conflict arises, the legislation by the National Assembly will prevail, by virtue of Section 4(5) of the 1999 Constitution.
32
What was the principal criminal law legislation in Southern Nigeria in 1961?
The Criminal Code, as scheduled to the Criminal Code Law (CC).
33
What was the principal criminal law statute in Northern Nigeria in 1960?
The Penal Code Law (PC).
34
What action did the Federal Parliament take to address the application of federal offenses in Northern Nigeria?
The Federal Parliament enacted the Penal Code (Northern States) Federal Provisions Act (Federal Act).
35
What was the rationale behind the Federal Act?
To ensure conformity between the PC provisions relating to federal offenses and those in force elsewhere in the Federation.
36
What was a notable exception to the general scheme of legislative powers over criminal matters?
The regimes of Military Governments.
37
What was the typical legislative power of Federal Military Governments?
They were usually empowered to make laws with respect to any matter whatsoever.
38
What specific decree exemplified this broad legislative power of military regimes?
The Constitution (Suspension and Modification) Decree 1984.
39
What was the combined effect of sections 1(2) and 5 of the 1984 Decree?
To empower the Supreme Military Council to legislate on any matter whatsoever, overriding the usual constitutional division of powers.
40
What is the significance of the Attorney General of Ondo State case?
It is crucial for understanding the concurrent powers of Federal and State governments in legislating against corruption under the 1999 Constitution.
41
What does the application of different codes (Criminal Code in the South, Penal Code in the North) highlight?
It highlights the legal pluralism that existed in Nigeria post-independence.
42
How did military regimes alter the constitutional balance of power?
They significantly concentrated legislative authority at the federal level and overridden the usual division of powers.
43
What are some criticisms of the bribery provisions in the Criminal Code (specifically sections 98, 98A, and 98B)?
They are unclear and complex (Chipitan & Oyewa, 1999). They are difficult to interpret and apply (Okonkwo, 1992; Akinseye, 2000). A major problem is the use of the word 'corruptly' without a clear definition.
44
What is the main problem with the use of the word 'corruptly'?
It is not defined in the CC, leading to ambiguity in determining the mental element (mens rea) of the offense.
45
Who attempted to define 'corruptly,' and what was their definition?
Bairamian J attempted to define it in Riobakas Police v His Lordship.
46
What was Bairamian J's definition of 'corruptly'?
'The receiving or the offering of some benefit as a reward or inducement to sway or deflect the officer from the honest and impartial discharge of his duties; in other words, as a bribe for corruption or its price.'
47
What is the article's assessment of Bairamian J's attempt?
While commendable for attempting to articulate the policy behind criminalizing the receipt of benefits by public officers, it ultimately failed to achieve clarity and certainty. The definition of 'corruptly' is considered too important to be left to judicial interpretation; it should be clearly defined in the law itself.
48
How do the bribery provisions in the Penal Code differ from those in the Criminal Code?
The PC does not use the word 'corruptly.'
49
What does the PC's offense of bribery cover (section 115)?
It covers any person who accepts, obtains, or agrees to receive any gratification (pecuniary or otherwise) other than lawful remuneration as a motive or reward for: (a) doing or forbearing to do any official act; (b) showing or forbearing to show favor or disfavor in their official functions; or (c) rendering or attempting to render any service or disservice to any person with any department of the public service or with any public servant.
50
How does the article assess the drafting of section 115 of the PC compared to the CC?
The language of the PC is considered clearer, less convoluted, simpler, and easier to understand than that of the CC, making it an improvement in the definition of bribery.
51
What is a similarity between the CC and PC definitions of bribery?
Both definitions revolve around bribery involving a public official.
52
How did the Federal Military Government intervene in the law on bribery?
Through the enactment of the Corrupt Practices Decree 1975.
53
What was the intent of the 1975 Decree's definition of bribery?
It attempted to simplify the offense of bribery.
54
What problem did the 1975 Decree unfortunately still retain?
It still retained the underlying distinction in the law relating to bribery through the provision of section 1 of the Decree, which unfortunately did not fully remedy the public/private distinction.
55
What happened to the 1975 Decree?
It was repealed on September 28, 1979.
56
What other decree did the Military Government enact related to corruption?
The Recovery of Public Property (Special Military Tribunals) Decree, amended by subsequent decrees (No. 14 of 1984 and No. 28 of 1986).
57
What is the main critique of the term 'corruptly' as used in bribery laws?
It is vague and lacks a clear legal definition, leaving its interpretation to judges, which creates uncertainty. The article argues that the meaning of 'corruptly' should be explicitly defined in any law prohibiting bribery.
58
How does the Penal Code approach the offense of bribery compared to the Criminal Code?
The PC avoids using the ambiguous term 'corruptly.' Instead, it focuses on the acceptance or obtaining of any 'gratification' (pecuniary or otherwise) as a motive or reward for specific actions by a public servant.
59
What specific actions by a public servant are covered under the PC's bribery provisions (Section 115)?
(a) Doing or forbearing to do any official act. (b) Showing or forbearing to show favor or disfavor in the exercise of official functions. (c) Rendering or attempting to render any service or disservice to any person with any department of the public service or with any public servant.
60
How does the article evaluate the drafting of the PC's bribery provisions?
It is considered clearer, less convoluted, simpler, and easier to understand than the CC's provisions, making it an improvement.
61
What is a key similarity between the CC and PC definitions of bribery?
Both focus on bribery involving a public official.
62
What was the Federal Military Government's attempt to address bribery in 1975?
The enactment of the Corrupt Practices Decree 1975.
63
What was the aim of the 1975 Decree's definition of bribery?
To simplify the offense.
64
What significant problem did the 1975 Decree fail to resolve?
It retained the distinction between public and private bribery, which was considered a limitation.
65
What was the fate of the 1975 Decree?
It was repealed on September 28, 1979.
66
What other legislative measures did the Military Government introduce related to corruption?
The Recovery of Public Property (Special Military Tribunals) Decree 1984, as amended by Decrees No. 14 of 1984 and No. 28 of 1986.
67
What was the purpose of these Decrees?
To punish any public officer who: (i) Engaged in corrupt practices. (ii) Corruptly enriched themselves or any other person by virtue of their office. (iii) Contributed to the economic adversity of the Federal Republic of Nigeria. (iv) Acted in breach of the Code of Conduct. (v) Attempted, aided, counseled, procured, or conspired with any person to commit any of the aforementioned offenses.
68
What controversial aspect of these Decrees is highlighted in the article?
They violated the constitutional prohibition of retroactivity of penal legislation (punishing actions that were not illegal at the time they were committed).
69
What legislation was enacted in 2000 to specifically address corruption?
The Independent Corrupt Practices and Other Related Offences Act 2000 (ICPC Act).
70
What critique does the article offer regarding the ICPC Act?
It disagrees with the view that the ICPC Act is a well-crafted piece of anti-corruption legislation.
71
What specific shortcomings are identified in the ICPC Act?
It retained the ambiguous word 'corruptly' in the definition of bribery offenses (Sections 8 and 9). It failed to address the limitations of the CC and PC by focusing only on cases involving public officers.
72
How do the Sharia Penal Codes of some states compare to the PC and ICPC Act regarding bribery?
They are substantially similar to the provisions of sections 115-118 of the PC and also focus on bribery involving public officials, failing to make any meaningful improvements.
73
What is identified as a major problem with the laws examined in the article?
They focus almost exclusively on bribery involving public officials, neglecting bribery in the private sector.
74
What is the article's assessment of the ICPC Act 2000?
The article disagrees with the view that it is a well-crafted piece of anti-corruption legislation.
75
What specific shortcomings are identified in the ICPC Act?
• It retained the ambiguous word "corruptly" in the definition of bribery offenses (Sections 8 and 9). • It failed to address the focus on bribery involving only public officers, neglecting the private sector.
76
How do the Sharia Penal Codes of some states compare to the PC and ICPC Act regarding bribery?
They are substantially similar to the provisions of sections 115-118 of the PC and also focus on bribery involving public officials, failing to make any meaningful improvements.
77
What is identified as a major, recurring problem with the anti-corruption laws examined in the article?
They almost exclusively focus on bribery involving public officials, neglecting bribery in the private sector.
78
What argument is made for including the private sector in anti-corruption efforts?
If efforts are focused solely on cleaning up the public sector without addressing corruption in the private sector, the corruption will simply spread from the private sector to contaminate the public sector.
79
What type of legislation was enacted between 1962 and 2012 in Nigeria?
Legislation to punish economic and financial crimes.
80
Name some of the principal legislation enacted during this period.
• Counterfeit Currency (Special) Provisions Act. • Exchange Control and (Anti-Sabotage) Decree (replaced by the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act). • Miscellaneous Offences Act. • Money Laundering Prohibition Act 2011. • Advanced Fee Fraud and Other Fraud Related Offences Act 2006. • Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Act.
81
What is a major problem with the enforcement of laws on economic and financial crimes?
Lack of dedicated institutional capacity to enforce the laws.
82
What institution was established to address this problem?
The Economic and Financial Crimes Commission (EFCC), established by the EFCC Act.
83
What is the EFCC's mandate?
To enforce legislation relating to economic and financial crimes, including the CC and PC.
84
What is the article's assessment of the EFCC's success in prosecuting high-profile individuals?
Despite the high profile nature and publicity of its work, the EFCC has had limited real success in the prosecution of nationally prominent leaders.
85
What statistics are given to support this assessment?
Between 2003 and July 2011, only 30 nationally prominent leaders were charged, with only four convictions. Only one conviction was obtained at trial, with others obtained through plea bargains that involved dropping some of the most serious charges.
86
Connecting the dots
• The critique of the ICPC Act and the Sharia Penal Codes shows that simply enacting new laws is not enough if they do not address fundamental issues like the definition of "corruptly" and the focus on public sector bribery. • The establishment of the EFCC demonstrates an attempt to improve enforcement capacity, but the statistics cited raise questions about its effectiveness in prosecuting high-profile cases. • The discussion of economic and financial crimes broadens the scope beyond just bribery, showing the range of legislative efforts in this area.
87
What are some statistics provided regarding the EFCC's achievements?
The Commission claims to have secured over 600 convictions, obtained forfeiture orders with respect to 455 units of real estate, 593 units of vehicles or vessels, 404 seizures of bank accounts, and 183,627 units of other assets since its establishment. It also claims to have recovered over US$11 billion.
88
What is a criticism of the EFCC's work mentioned in the article?
The use of plea bargaining in the prosecution of cases.
89
What does the article state about plea bargaining in relation to its scope?
It is a matter of criminal procedure and therefore outside the scope of the paper (Oguche, 2012, pp. 26-55).
90
How does the article categorize other federal offenses?
Into three categories: • (i) Legislations motivated by the desire of the Government to respond to international concerns and obligations assumed under international law. • (ii) Legislations responding to purely local issues. • (iii) Legislations creating regulatory offices.
91
What legislation was enacted to deal with drug trafficking and fulfill international obligations?
The National Drug Law Enforcement Agency Act (NDLEA Act).
92
Why was the NDLEA Act enacted?
To address the growing involvement of Nigerians in illicit trafficking in drugs and narcotics and to fulfill obligations under international conventions on illicit trafficking in drugs.
93
What agency was established by the NDLEA Act?
The National Drug Law Enforcement Agency (NDLEA).
94
What are some of the main offenses addressed by the NDLEA Act?
The importation, exportation, selling, and knowingly possessing drugs known as cocaine, LSD, heroine, or any other similar drugs.
95
What other offenses are included under the NDLEA Act?
Occupier unlawfully permitting use of premises for drug activities, conspiracy, tampering with drugs, and offenses in relation to drug abuse.
96
What provisions are included in the NDLEA Act regarding forfeiture?
Ample provisions to ensure the tracing and interim forfeiture of proceeds of any illegal dealing in trafficking in narcotics and psychotropic substances before conviction and forfeiture after conviction.
97
How has the work of the NDLEA been received internationally?
It has received international acclaim.
98
What example of international recognition is provided?
The United States of America recently delisted Nigeria from the list of major drug trafficking countries due to the NDLEA's efforts.

Criminal Law (6 decks)

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