ORIGIN OF THE CODE
The Nigeria Criminal Code, as we know it, came into force in 1916, and applied to the Colony and to the whole of the Protectorate. It was based on the code then in force in Northern Nigeria.
The latter, which was submitted in draft in 1903, was practically the Queensland Code, modified and curtailed—considerably so in parts—to suit local needs. Many of the Queensland provisions were replaced by provisions taken from the Gold Coast Code where they seemed more suitable to the locality, and occasionally sections provided in the Indian Penal Code and in H. L. Stephen’s draft of an English Criminal Code were substituted for more or less corresponding provisions of the Queensland Code. In addition, various offences under existing Northern Nigeria Proclamations were introduced.It seems that the Southern Provinces were not anxious to follow the Northern Nigeria model but wished to introduce a code based on the Straits Settlements model, which in turn is a modification of the Indian Code. There is a minute in the Colonial Office files as follows: ‘Southern Nigeria should wait and adopt the Northern Nigeria Code, supplementing it if and when necessary, so that there may be only one main stream of criminal jurisprudence in Nigeria’. One cannot help but reflect, more than half a century later, that Northern Nigeria made a mistake in not adopting the Indian Code at the outset, whilst Southern Nigeria made a mistake in wanting to do so.
Nigerian lawyers may be surprised to hear that their Criminal Code is largely a product of Australia. Perhaps they would be surprised even more to learn that it embodies much that was good in the Italian Penal Code of 1888, one of the finest Codes in existence at that time, whilst a few of its provisions are derived from the Penal Code of New York State.
Before pursuing this matter further I think I ought to say a little on the subject of codification of criminal law generally.
In 1880 a Criminal Code Bill was introduced into the English Parliament, but owing to organized opposition in the House of Commons it was not even read a second time. It has been said that the history of codification of criminal law in England stopped at that point. Much has been done in the way of consolidation, but that of course is a different matter. The work done on the Bill was not, however, in any way wasted. The draft English Code of 1880, with suitable adaptations, was adopted by various Colonial legislatures. The English model was followed in New Zealand (Act No. 56 of 1893) and in Canada (55 & 56 Viet., c. 29), and oddly enough in certain native territories in South Africa. It had some influence on the Queensland Code, but I shall have something more to say about that later.Colonial legislatures in the Far East have been more inclined to adopt the Indian model. Work on the Indian Penal Code was begun by a draft by Lord Macaulay, framed during his tenure of office on the Viceroy’s Council between the years 1834 and 1838. During twenty years it remained a draft, as the English Code remains to this day, but after an elaborate revision by the Legislative Council it became law in i860. Since that date it has been introduced in one form or another into several parts of Her Majesty’s dominions in the Far East. Perhaps the best known version is the Straits Settlements model. This was introduced, with local variations, in Sarawak and elsewhere. British North Borneo, during the period of rule by the Chartered Company, used the Indian Penal Code, and it was left to the Courts to make suitable adaptations. The territory became a Colony in 1946, and not very long afterwards North Borneo found it more convenient to adopt the Sarawak Code. Brunei followed suit for the same reason.
It is dear that both the English model (although the original draft never found its way onto the Statute Book) and the Indian model have had a profound effect on the criminal law in the component parts of the British Commonwealth.
A bold legislative experiment in Australia has produced a third model, which may be called the Queensland model. The Queensland Criminal Code was passed in 1899 and came into force on January 1,1901. It had a great influence on the Code of Western Australia, and to a lesser extent on the Tasmanian Code. It was also introduced into the territory of Papua and what was formerly the Mandated Territory of New Guinea.The Queensland Criminal Code was largely the work of Sir Samuel Griffith, who later became the first Chief Justice of the High Court of Australia. The final draft was settled after considering the report of a Royal Commission. Sir Samuel Griffith embodied in the Code a good many provisions which were not to be found in the draft English Code of 1880, but which he considered to be correct statements of the common law or propositions which he thought would commend themselves as rules which ought to be recognized as the law. He was also at pains to acknowledge his indebtedness to the ftamers of the Italian Penal Code of 1888, of which he was a great admirer. To quote his own words:
‘I have derived very great assistance from this Code which is I believe in many respects die most complete and perfect Penal Code in existence. I have also derived much help from the masterly Ministerial explanation {Relatione) of Signor Zanardelli, who had charge of this Code during its passage through Parliament.’
As I mentioned earlier, he also had frequent recourse to the Penal Code of New York State.
To return to the subject of my paper, the Nigeria Criminal Code is based on the Queensland model. I have dealt with the history of the matter at some length, because I believe it to be very important. It opens the way for a comparative study, which so far has never been undertaken. A substantial portion of the two Codes is in identical language. It seems to me that with die aid of the technique of comparative law the jurisprudence of Nigeria could be gready enriched. The subject is so vast, and the implications so far-reaching, that I shall try to illustrate my point by dealing here with only one small, but important, chapter in the Nigeria Criminal Code.