By Gbolahan Badru
In what appears to be a well-intentioned moral crusade, the Nigerian Senate recently passed a bill seeking to amend the Criminal Code Act to prescribe life imprisonment for anyone convicted of defiling a minor. While the move resonates with public outrage over rising cases of child sexual abuse, it also exposes a worrying pattern of legislative overreach and constitutional ignorance.
What is at stake here is not the importance of protecting children, an objective that every decent society must uphold, but the fidelity of our lawmakers to constitutional boundaries. When the National Assembly assumes powers that the Constitution does not confer upon it, even noble motives cannot cure the defect. This latest amendment attempt, though cloaked in moral virtue, represents a fundamental misunderstanding of Nigeria’s federal structure and the limits of legislative competence.
The Constitutional Framework: Powers and Boundaries
The 1999 Constitution of the Federal Republic of Nigeria, under Section 4, clearly distributes legislative powers between the National Assembly and the State Houses of Assembly.
- The National Assembly legislates exclusively on matters in the Exclusive Legislative List and concurrently with states on items in the Concurrent List.
- The State Houses of Assembly legislate on all matters not contained in either of those lists, what constitutional lawyers call residual matters.
Under the doctrine of covering the field, when both federal and state legislatures can legislate on a concurrent matter, a federal law intended to be comprehensive overrides the state law. But where a subject is neither on the Exclusive nor Concurrent List, it remains a residual matter for the states.
This structure is not an accident, it is the constitutional embodiment of Nigeria’s federal character. Yet, the National Assembly has repeatedly found itself colliding with these constitutional limits, sometimes out of political zeal, sometimes out of misapprehension. The Senate’s attempt to amend the Criminal Code Act is a fresh example of such legislative recklessness.
Colonial Legacy Mistaken for Federal Law
To understand why the Senate’s move is constitutionally unsound, one must revisit the history of the Criminal Code Act.
The Criminal Code was introduced to Nigeria in 1902 by the British colonial administration, modeled largely after Queensland’s 1899 Criminal Code. In 1916, it was enacted as the Criminal Code Ordinance, applying mainly to the Southern Provinces. The Northern Region, which operated under Islamic criminal jurisprudence, resisted it and later adopted the Penal Code in 1959.
Thus, from inception, Nigeria’s criminal law was deliberately dual; the Criminal Code in the South and the Penal Code in the North, reflecting the country’s cultural and religious diversity.
When the 1954 Lyttleton Constitution introduced federalism, criminal law became a residual subject, reserved for regional (now state) competence. The Criminal Code Ordinance survived as a regional law in the South, while the North maintained the Penal Code.
Later, when Nigeria consolidated its laws in 1990 and again in 2004, the Criminal Code Act appeared in the Laws of the Federation of Nigeria (LFN) as Cap. C38. However, this codification was merely a compilation exercise. It did not and could not convert a regional law into a federal one. The LFN is not a constitutional instrument, it is an administrative list of all laws currently in force, whether federal or state-derived.
Hence, despite being labelled an “Act,” the Criminal Code Act is not a product of National Assembly legislation. It remains, in character and application, a state law operative within southern jurisdictions.
Legislative Competence: What the Constitution Actually Allows
Section 4(2) of the Constitution empowers the National Assembly to make laws for the peace, order, and good government of the Federation only with respect to matters in the Exclusive or Concurrent Lists. Criminal law, in general, appears in neither.
The only exceptions are offences incidental to federal powers, such as terrorism, treason, cybercrime, currency counterfeiting, and crimes against federal institutions.
The Supreme Court has consistently upheld this distinction. In A.G. Lagos State v. A.G. Federation (2003) 12 NWLR (Pt.833) 1, the Court ruled that the National Assembly cannot legislate on matters reserved for the states. Similarly, in A.G. Ogun State v. Aberuagba (1985) 1 NWLR (Pt. 3) 395, it held that where a matter is not expressly or impliedly listed in the Exclusive or Concurrent Lists, it belongs to the states.
The attempted amendment of the Criminal Code Act; a residual law, is therefore a direct violation of Section 4(7) of the Constitution. The Senate simply lacks the competence to legislate on such a matter, no matter how laudable its intentions.
The Misconception of “Federal Law” and the LFN Trap
Much of this confusion stems from a persistent misconception: that every statute appearing in the Laws of the Federation of Nigeria is automatically a federal law. This is incorrect.
The LFN is not a catalogue of only federal laws; it is a compilation of all extant laws applicable within the Federation, some of which predate independence or were enacted by regional governments. The inclusion of the Criminal Code Act in the LFN does not transform it into a federal statute, it merely acknowledges its continued existence.
As the late Professor Ben Nwabueze warned in Federalism in Nigeria under the Presidential Constitution (1983), “Federal power cannot be assumed merely by codification; it must be grounded in constitutional competence.”
By purporting to amend the Criminal Code Act, the National Assembly has acted beyond that competence. Its moral objective of protecting minors from abuse, cannot sanitize an unconstitutional process.
What the Senate Could Have Done Instead
If the Senate’s true goal is to strengthen protection for minors, the constitutional path is clear. It could have amended:
- The Child Rights Act, 2003, which already prescribes penalties for child sexual offences; or
- The Violence Against Persons (Prohibition) Act, 2015 (VAPP Act), which has gained increasing state adoption and advocacy support across Nigeria.
Alternatively, the Senate could have proposed a Protection of Minors (Amendment) Bill, anchored on Item 68 of the Exclusive Legislative List, which allows legislation incidental to federal powers such as administration of justice or protection of fundamental rights.
By choosing instead to amend a residual law, the Senate’s action offends both the spirit and letter of the Constitution. As the Supreme Court stated in A.G. Abia State v. A.G. Federation (2006) 16 NWLR (Pt.1005) 265, legislative power “is a creature of the Constitution and must be exercised strictly within its limits.”
The Federal Illusion and Southern Reality
This episode exposes a deeper constitutional illusion that Nigeria operates a unitary criminal justice system. In truth, the North and South have distinct legal regimes: the Penal Code in the North, the Criminal Code in the South. This asymmetry is deliberate. It reflects Nigeria’s pluralism and was preserved by the framers of the 1999 Constitution to respect regional autonomy over moral and cultural questions embedded in criminal law.
To allow the National Assembly to unilaterally amend the Criminal Code would create a constitutional absurdity: a law applicable only to the South, passed by a legislature representing both North and South. It would distort the balance of Nigeria’s federal design.
As the Court of Appeal held in Unilorin v. Oluwadare (2006) 14 NWLR (Pt.1000) 751, no institution however exalted may act outside the limits imposed by the Constitution. Legislative good intentions cannot cure constitutional incompetence.
Conclusion: The Thin Line Between Morality and Jurisdiction
There is no doubt that child defilement deserves the harshest of punishments. But good intentions cannot legalize unconstitutional action. The Senate’s attempt to amend the Criminal Code Act is, in principle, laudable, but in law, indefensible.
The Criminal Code Act it seeks to amend is not a federal statute but a relic of regional legislation. To alter it through a federal instrument is to legislate ignorance into law.
In constitutional governance, jurisdiction is the soul of validity. A Parliament that cannot distinguish between morality and competence risks desecrating the very Constitution it swore to uphold.
In the end, the legitimacy of legislation rests not on the purity of intention, but on the precision of competence. Protecting the child is a sacred duty, but protecting the Constitution is the first step in ensuring that justice, when done, is done lawfully.
Badru is a 500-Level Law Student, Usmanu Danfodiyo University, Sokoto
