By Abubakar D. Sani, Esq.
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This provocative question is prompted by what I believe is the anomalous state of the law vis-à-vis the ongoing application of the provisions of the Penal Code in Abuja, the Federal Capital Territory of Nigeria. As I shall shortly explain, the situation is attributable to the peculiar status of the FCT, whose emergence has indirectly impinged on its legal framework. But, first, a brief historical background.
Origin of the FCT
The area now called the Federal Capital Territory was created by military fiat by the regime of late General Murtala Muhammed with effect from the 4th day of February, 1976. See the Federal Capital Territory Act, Cap. 128, Laws of the Federation, 1990. With the coming into effect of the 1999 Constitution, the status of the FCT became entrenched as part of the grundnorm vide Sections 3 and 297 – 299 thereof. The latter provision, in particular (i.e., Section 299(a)) vests the National Assembly with the exclusive power to legislate for the FCT, which power shall “be exercised in accordance with the Constitution”: Section 299(b) of the Constitution
Laws of the FCT
By virtue of Section 13(1) of the FCT Act, Cap. 128, Laws of the Federation, 1990, in addition to any law having effect or made applicable throughput Nigeria, the laws contained in the 2nd Schedule to the Act were applicable to the FCT with effect from the 9th day of May, 1984. Those laws include the Penal Code Law, Chapter 89 of the Laws of Northern Nigeria, 1963.
The implication of this, under the 1999 Constitution, is that the FCT Act is an existing law as defined in Section 315(4)(b) of the Constitution. By virtue of Section 315(1)(a) thereof, such laws shall have effect with such modifications as may be necessary to make them conform with the Constitution, and they shall be deemed to be an Act of the National Assembly to the extent that they are laws with respect to any matter on which the National Assembly is empowered under the Constitution to make laws.
This leads to the question, whether the FCT Act, or any part thereof, requires modification to bring it into conformity with the Constitution. Does it? Is the whole Act or any of its provisions consistent with the Constitution or is it (or are they) not?. If not, how and, to what extent or degree? This point is important, as the absence of such textual modification by the appropriate authority – either the President or a State Governor – where required renders an existing law invalid: Section 315(2) &(4) of the Constitution; TOGUN vs. OPUTA (No. 2) (2001) 6 NWLR Pt. 740 pg. 597.
It is in this regard that I believe that the stipulation of Section 13(1) of the FCT Act that the Penal Code Law shall have retrospective effect from the 9th day of May, 1984, is problematic. This is because, the Constitution explicitly provides that the National Assembly and State Houses of Assembly shall not have the power to enact any criminal law which has retrospective effect: see Section 4(9) of the 1999 Constitution. To that extent, I believe that the affected provisions of the FCT Act cannot take effect as an existing law unless the aforesaid offensive (retrospective) portion is modified by the President. By virtue of Section 315 (4)(c) of the Constitution, such modification includes omission, repeal or alteration.
Does this mean the Penal Code Law is invalid in the FCT and that the Territory lacks an operative general criminal statute? I believe the answer is ‘Yes’. However, is that the end of the matter, or is there a way out? The solution, in my view, is for the President to modify the text of the FCT Act – in so far as it applies to the Penal Code (or any other criminal provision in the Laws of Northern Nigeria, Cap. 89 which it incorporates by reference) – by deleting the words “as from the 9th May, 1984” therefrom. In that event, the question is: what effect, if any, such a momentous change will have on past convictions based on the Penal Code, prior to the modification? It is obvious that the answer will be anyone’s guess. Does it mean they would be invalid as offending the constitutional ban against a criminal conviction based on a non-existent law? That remains to be seen. However, no less crucially, in my view, this also applies to on-going prosecutions in the FCT for conduct which allegedly constitute offences under the Penal Code.
Conclusion
Suffice it to say that, to the extent that, under the Constitution, the National Assembly is incompetent to enact a fresh criminal statute having retrospective effect, for any pre-existing criminal law on a matter in respect of which the Assembly is competent to legislate upon to be valid, it must not have that effect. If it does – as I submit is clearly the case with the FCT Act’s adoption of the Penal Code in the FCT – it cannot take effect as an existing law under the Constitution. On the contrary, without the requisite modification to make it conform with the Constitution (by deleting its retrospective provisions), it would be invalid and unconstitutional.
Abubakar D. Sani, Esq.
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