SECTIONS 10 AND 34 OF THE CRIMINAL CODE ACT; A SLAP ON ISLAMIC AND CUSTOMARY LAW MARRIAGES. BY ABUBAKRI AKBAR YINKA

INTRODUCTION

It is arguable that all Nigeria learnt from history is ‘nothing’, if not, most of her principal obstacles one of which is bias law would have been kicked out by the wind of time. The most pathetic part of it is that this obstacle exists not as a result of nature but nurture in that it wasn’t born in Nigeria but threaded into it with the colonial masters and was subsequently adopted as legislation, only to turn out to be a wolf in sheep’s clothing on our good customary laws.

The above doesn’t mean there are no bad customary laws or that all legislations are bad but recognizes the existence of bias legislations which need be made just and bad ones that should be thrown where they belong; the dustbin.

It is in lieu of this that this paper x-rays Sections 10 and 34 of the Criminal Code Act as some of the provisions that need not be abrogated but whose rectification of biasness against Islamic and customary marriages’ couples shouldn’t be adjourned but done exigently.

WHAT IS THE CRIMINAL CODE ACT?

The Criminal Code Act is the fundamental law of crime in the Southern Nigeria. The code was drafted by a British Lawyer namely Sir James Fitz stephen, to be applied in Britain, the British parliament didn’t enact it but instead sent it to be applied in the British colonies one of which Nigeria was at the material time. The law was firstly introduced in the then Northern protectorate in 1904 but due to the 1914 amalgamation, the code’s applicability was extended to the Southern Nigeria in 1916.

On the eave of Independence, the Code was substituted with the Penal Code in the North, so, the code is now applicable only in the Southern Nigeria.However, there has been calls for the amendment of the Code in the South and that led to an amendment in 1990 which till date was the last.

THE CONSTITUTION ON THE FREEDOM FROM DISCRIMINATION

Section 42 of the Constitution of the Federal Republic of Nigeria 1999 ( as amended) recognizing the freedom from discrimination provides that a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason of being such a person :-

(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or

(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

Subsection 3 provides for the only exception to this freedom by providing that ‘ nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria’.

It can be deduced from the above that this freedom is available to everyone, as no one is to be discriminated save from the exception given in section 42(3) supra.

SECTIONS 10 AND 34 OF THE CRIMINAL CODE ACT AS DISCRIMINATORY PROVISIONS

Prior to colonization, marriage in Nigeria was purely governed by customary laws but same is not the present situation as marriage in the contemporary Nigeria can be contracted under three laws; Islamic law, customary law and Marriage Act (English law). None of these forms of marriage has been proved to be superior to others. However, the Criminal Code Act in sections 10 and 34 give certain privilege to Marriage under the Act popularly known as court marriage.

For the purpose of clarification, we exercise the freedom to reproduce the sections. Talking about the offence of accessory after the fact, section 10 of the Criminal Code Act provides: “A person who receives or assist another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence.

A wife does not become an accessory after the fact to an offence of which her husband is guilty by receiving or assisting him in order to enable him to escape punishment; nor by receiving or assisting, in her husband’s presence and by his authority, another person who is guilty of an offence in the commission of which her husband has taken part, in order to enable that other person to escape punishment; nor does a husband become accessory after the fact to an offence of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment….”

The section further provides that ” in this section the terms “wife” and “husband” mean respectively the wife and husband of a Christian marriage.” Similarly, on the the offence of conspiracy, section 34 of the code states that: “A husband and wife of Christian marriage are not criminally responsible for a conspiracy between themselves alone.”

The effect of the above sections is that a wife and husband of a Christian marriage can’t be held liable for the offences of accessory after the fact and conspiracy but husband and wife of either Islamic or customary marriage will be held liable if they commit any of the two offences, the question now is what is a Christian marriage?

The term Christian marriage according to section 1 of the Criminal Code Act is a marriage which is recognized by the law of the place where it is contracted as the voluntary union of one man and one woman to the exclusion of all others.

This definition clearly shows that Christian marriage means Marriage under the Act (court marriage) and as such those whose marriage is either Islamic or customary marriage are side lined from benefiting from the provisions of sections 10 and 34 of the Criminal Code Act. This is apparently an act of discrimination and it’s against the provisions of section 42 of the Constitution.

Someone might argue that the Constitution didn’t expressly state marriage as one of the grounds where a person shouldn’t be discriminated, my response to that is that such person shouldn’t forget that marriage in Islam is half of a Muslim’s religion and must be done as dictated by the religion, so, since religion is expressly stated in the section, no Muslim should be discriminated because he contracted an Islamic marriage and same should be the position of couples of customary marriage. Another argument which may arise is that the benefit is limited to Christian marriage because the prominent feature that distinguish it from other marriages is that it’s monogamous in nature, this is also a baseless submission in that there are many Muslims with one wife and if they’re tried under the two sections of the Criminal Code, they will be held liable because the name of their marriage isn’t Christian marriage.

This left us with the thought that these provisions were made by the white men to protect themselves or in the alternative, to encourage this form of marriage, I submit that the later view is good but shouldn’t have been done in discrimination of others.

RECOMMENDATION

I recommend that these two provisions be amended, and the benefits therein be extended to other forms of marriage or in the alternative be thrown into the dustbin in order to satisfy the provisions of section 42 of the Constitution in that the Constitution can’t be amended for the Criminal Code Act because the Constitution in section 1(3) unambiguously provides for its supremacy over every other laws.

CONCLUSION

We have seen from the above that marriage under the Act, customary marriage and Islamic marriage are the three forms of marriage in Nigeria. Also, it’s clear that the Constitution provides for freedom from discrimination in section 42 with only one exception which has been extensively discussed. Moreso, we have x-rayed the provisions of sections 10 and 34 of the Criminal Code Act, how it’s in Conflict with the Constitution and we have recommended that the privilege in the Sections be extend to all forms of marriage or be deprived them all of the privilege. From all these, we submit that Sections 10 and 34 of the Criminal Code Act are discriminatory in favour of marriage under the Act against Islamic and customary marriages.