Is the Penal Code Enforceable in the FCT? – THISDAYLIVE

Introduction

This curious question, is prompted by my belief that the invalidity of the Code is the only plausible conclusion to be drawn from a dispassionate analysis of the relevant provisions of the Penal Code Act as well as those of the 1999 Constitution of the Federal Republic of Nigeria, as I shall presently demonstrate. Before then, however, some background.

Legal History of the FCT

The FCT came into being on the 6th of February, 1976 and it was codified in the Federal Capital Territory Act LFN 2004 (formerly of 1990). Its status as Nigeria’s capital is affirmed in Chapter VIII (Sections 297- 304) of the 1999 Constitution, which collectively outline it’s legislative, judicial and executive structures – with the National Assembly legislating for the FCT in the same way as State Houses of Assembly do for the 36 States of the Federation. This is crucial, as we shall soon see, given that Abuja ante-dates the Assembly which came into being (along with the rest of the Constitution) in 1999.

Laws of the FCT

The Federal Capital Territory Act, Cap. 128 LFN, 1990 states its commencement date as the 4th day of February, 1976. That was when the decree establishing the FCT took effect (one of the last official acts of the then Head of State, late General Murtala Muhammad before he was assassinated exactly a week later, on the 13th day of February, 1976 – R.I.P). Section 13 of the FCT Act provides that the laws set out in the 2nd Schedule thereto shall, as from 9th May, 1984, apply in the FCT – subject to such modifications to their text as would bring them into conformity with the Act. 

This provision is somewhat at odds with those of Section 315(1)(a), (2), (4)(a)(I) of the 1999 Constitution, which empowers the President to do so in respect of such existing laws as defined in Section 315(4)(b) of the Constitution (any statute, inter alia, which is in force prior to the commencement of the Constitution, that is, the 29th day of May, 1999). This, obviously, includes the FCT Act which, it would be recalled, came into being in 1976. Every statute takes effect from the commencement date indicated therein: EBIRIUKU v OHANYERENWA (1959) 4 FSC 212; ONUOHA v C.O.P. (1959) 4 FSC 23.

Among the laws adopted for the FCT under Section13 of the FCT Act are the Penal Code Law and the penal or criminal provisions of the following laws, inter alia: Food and Drugs Act, the Money Lenders Act, the Obscene Publication Act, the Produce Adulteration Law, the Private Hospitals Law, the Public Health Act, the Road Traffic Act, the Riot Damages Law, the Vaccination Act, the Unlicensed Guides (Prohibition) Act, etc. That being the case, I believe the question is whether those provisions (particularly of the Penal Code) are valid, having regard to the ban on retrospective criminal legislation under Section 4(9) of the Constitution. That provision is couched in following peremptory terms: “the National Assembly or a State House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect”.

I believe that this is precisely the effect of the wholesale adoption of the Penal Code as the general criminal law applicable in Abuja, by the aforesaid provisions of the FCT Act. Accordingly, to the extent that those provisions ante-date the 1999 Constitution, the question is whether they can take effect as ‘existing laws’ under the aforesaid provisions of Section 315(1)(a), (2), (4)(a)(I) & (b) of the Constitution. This, in turn, depends on whether the National Assembly can enact a criminal statute that has retrospective effect. Does the Assembly have that power under the Constitution? Of course, the answer, as previously shown, is an emphatic ‘NO!’.

This means that the aforesaid provisions of the FCT Act cannot take effect as ‘existing laws’ under the Constitution – and it, therefore, follows that their purported adoption of the Penal Code of Northern Nigeria among the laws of the FCT is null and void, on the ground that it violates the aforesaid constitutional ban on retrospective criminal legislation. Simply put, since the National Assembly cannot directly enact such a law, neither can it take effect as an ‘existing law’, as it would fail the criteria for conferring that status on such statutes under the Constitution. I believe the foregoing is put beyond peradventure by the provisions of Sections 315(3) of the Constitution which preserve the power of a court or tribunal to invalidate any provision of an existing law which is inconsistent with any other law, including – of course – the Constitution.

I make this submission with a full sense of responsibility and not without some trepidation. However, as the Apex Court held in IFEZUE v MBADUGHA (1984) All NLR 256 (quoting with approval, the Queens Bench Division of the High Court of England, in  ST. JOHN SHIPPING CO. v RANK (1984) 1 Q.B.. 267 & 287): 

“One should not be deterred from enunciating the correct principle of law, simply because it will entail startling or even calamitous consequences” 

Any Way Out? 

Disturbing as this situation is, I believe it does not defy remedy. I submit that the solution is for the National Assembly to enact the Code afresh. This, it can clearly do by virtue of the provisions of Section 299(a) of the Constitution, which empowers it to legislate for the FCT, as aforesaid. I believe that this is the neater and constitutional way out of this logjam which, if left unresolved, might hand an underserved escape route to criminals in the FCT who are on trial (and others who have been convicted) under the Penal Code. This is obviously undesirable.

The alternative might be to resort to the ut res magis valeat quam pereat rule of statutory interpretation, which means to give effect to a matter, rather than have it fail. This maxim is usually considered when alternative readings are possible, one of which (usually the broader reading) would achieve the manifest purpose of the statute and the other of which (usually the narrower reading) would reduce its futility or absurdity – with the interpreter choosing the one that gives effect to the statute’s purpose. See BLACK’S LAW DICTIONARY, 8th edition, page 1583 and IFEZUE v MBADUGHA (Supra). The question is: can the said provisions of Section 13 of the FCT Act be construed vis-à-vis those of Sections 4(9) and 315 (2) & (4) of the Constitution other than that the former constitute retrospective criminal legislation which cannot take effect as existing laws under the latter and are, therefore, invalid, null and void to the extent of the inconsistency? 

Can any statute which patently violates the Constitution be saved, simply for reasons of exigency – by virtue of some rule of statutory (or even constitutional) interpretation? Does the question of interpretation even arise, where the provisions in question are clear and unambiguous? Once again, I believe the answer is an emphatic ‘No!’. I submit that, this is the only possible outcome from the fact that criminal statutes are required to be construed strictly, that is, sympathetically in favour of the subject and against the State. See OHUKA v THE STATE (1988) 2 S.C. Pt II Pg. 139. Therefore, the ut res magis rule is inapplicable, as doing so would do more violence to the Constitution than the perceived benefit to be derived from applying it. 

The Constitution is supreme. There is a good reason why it bans retrospective criminal statutes – either enacted after its commencement in 1999 or prior thereto. The latter simply fails the Existing Law Test, because it is inherently and fundamentally unconstitutional. It is beyond salvage. That is the fate of the Penal Code Act, Cap. 532 Laws of the FCT, Abuja and Section 13 of the Federal Capital Territory Act Cap. 128. LFN 1990. Their respective commencement dates are their death sentences: in the case of the former, it is the 30th day of September, 1960, while in the case of the latter, it is the 9th day of May, 1984. 

Notwithstanding the fact that the President is the appropriate authority who is empowered under the Constitution to validate both laws by modifying them so that they take effect as ‘existing laws’, the President is simply impotent to do so in the face of the clear ban on retrospective criminal legislation prescribed by Section 4(9) of the Constitution. Therefore, the National Assembly should go back to the drawing-board, and enact a brand-new Penal Code for the FCT.