Foundations of Criminal Liability: The Historical Evolution and Dual Legal Codes of Nigeria
Understanding Nigerian criminal law requires understanding its history. Nigeria’s criminal law system is split into two: the Criminal Code governs the Southern States, while the Penal Code governs the Northern States. This division comes from British colonial rule and the different legal systems that existed before colonization.[^1]
Before the British Came
Before the British arrived, Nigeria wasn’t lawless. Different communities had their own ways of handling crime and maintaining order.
In the South, criminal law was unwritten.[^2] Villages and families handled disputes based on customs passed down orally. These systems focused on making things right between people, not on locking people up. Punishments aimed to restore peace in the community.
The North was different. Most of the North followed Islamic law, specifically the Maliki school. This was a complex, organized legal system with trained judges and detailed rules. Some non-Muslim communities mixed their traditional customs with Islamic law.
All these systems shared one thing: they were unwritten. Justice was flexible and adapted to each situation, unlike the rigid written codes the British would later bring.
How the British Codes Arrived
The British wanted a uniform legal system across Nigeria. In 1863, they introduced English criminal law to Lagos. But outside Lagos, people still followed their customary laws.
As British control grew, they needed clear written rules for their courts. English common law was too complicated for colonial officers (many were soldiers, not lawyers) to apply. They needed something simpler and written down.
The Criminal Code (1904)
In 1904, Lord Lugard introduced the Criminal Code for Northern Nigeria. Here’s an interesting fact: this Code didn’t come directly from England.
The Nigerian Criminal Code was copied from Queensland, Australia (1899). Queensland had copied it from a draft written by Sir James Fitzstephen in 1878. Fitzstephen wrote it to replace English common law, but the British Parliament never passed it. So Nigeria got a criminal code that England had rejected for itself.
In 1916, after Northern and Southern Nigeria merged in 1914, the Criminal Code was extended to the whole country. But there was a catch: Section 4 said native courts didn’t have to follow it. Since native courts handled most criminal cases, most Nigerians still lived under customary and Islamic law. The country now had two legal systems running side by side.
When Two Systems Collided (1933)
Having two legal systems in the North created serious problems. Islamic law was central to Northern life, but it conflicted with British law in key areas.
The main conflicts:
Murder and intent: Under Islamic law, if you attacked someone and they died, you could be executed—even if you didn’t mean to kill them. British law required proof that you intended to kill.
Provocation: The Criminal Code said if someone provoked you enough, killing them was manslaughter, not murder. Islamic law didn’t recognize this defense.
Political crimes: Under customary law, these were vaguely defined, making it easy to punish critics.
This created a deadly lottery. Kill someone in anger and you might get a prison sentence in a British court (manslaughter) or a death sentence in an Islamic court (murder)—for the same act.
In 1933, the government tried to fix this. Section 4 of the Criminal Code was amended, removing the words “other than a native tribunal.” At first glance, this seemed to abolish customary criminal law. But it had to be read with the 1933 Native Courts Ordinance, which kept customary law alive with some limits.
Courts disagreed on what the amendment meant. In Gubba v Gwandu NA,[^3] the West African Court of Appeal said whenever a native court tried a crime that was also in the Criminal Code, they had to apply the Code. This forced Islamic courts to consider defenses like provocation.
Later investigation showed the amendment was really about limiting punishments, not changing the whole legal system. By 1957, after Maizabo v Sokoto NA,[^4] the rule was clear: native courts could use customary criminal law, but they couldn’t give harsher punishments than the Criminal Code allowed.
The Penal Code (1960)
By the late 1950s, the North needed a better solution. The Criminal Code didn’t fit Northern society because it wasn’t written for Muslims. In 1958, Northern leaders set up a panel to fix the problem. They recommended keeping Islamic law for family matters but codifying criminal law.
In 1959, the Penal Code was passed (effective 1960), replacing the Criminal Code in the North.
Key facts:
Origin: Unlike the Southern Code (from Queensland), the Penal Code came from Sudan’s Penal Code, which was based on India’s Penal Code (1860).
Why Sudan? Sudan’s code worked well in a Muslim society. It balanced modern reforms with traditional values.
Special features: It kept certain Islamic offenses like drinking alcohol (only criminal for Muslims), adultery (under native law), and insulting a woman’s modesty. But it didn’t recognize provocation as a defense to murder, staying closer to traditional Islamic views.
The End of Unwritten Criminal Law
One major change was ending unwritten customary criminal law. Before independence, local courts punished people for crimes that existed only in custom, not in any written law. This violated the basic principle: no crime without law (nullum crimen sine lege).
The 1958 Constitutional Conference addressed this. The 1960 Constitution included fundamental rights, now in Section 36(12) of the 1999 Constitution:
“No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law”.[^5]
The Penal Code reinforced this in Section 3(2): “No person is to be liable for punishment under native law or custom”. Today, while customary law still applies to civil matters like land and marriage, it has no role in criminal law.
Conclusion
Nigerian criminal law has a dual structure from its colonial past. The Criminal Code governs the South, the Penal Code governs the North. Both trace back to English common law but took different paths to get here. Cases like Gubba and Maizabo, along with the Constitution, moved Nigeria from flexible customary justice to written law. The message is clear: only written law can define crimes and punishments.
[^1]: For a comprehensive understanding of Nigeria’s legal sources, see ‘Sources of Law in Nigeria‘ (LearningTheLaw.org).
[^2]: See ‘African Customary Law: Sources, Courts and Administration‘ (LearningTheLaw.org).
[^3]: Gubba v Gwandu Native Authority (1947) 12 WACA 141.
[^4]: Maizabo v Sokoto Native Authority (1957) WRNLR 100.
[^5]: Constitution of the Federal Republic of Nigeria 1999 (as amended), s 36(12).
