DIFFERENCES BETWEEN CULTURALLY DERIVED CRIMINAL LAW AND ENGLISH DERIVED CRIMINAL LAW.


DIFFERENCES BETWEEN CULTURALLY DERIVED CRIMINAL LAW AND ENGLISH DERIVED CRIMINAL LAW.
A logical aftermath of a long and consolidated occupation, control and subjection of any country by an alien government however benevolent is the imposition of its culture on such country. Indeed in the circumstances, the more benevolent the occupying power, the more completely successful and enduring the effort to impose its ways of life and concept of morality. The resulting effect of this imposition is the replacement and destruction of the indigenous laws and customs which are usually regarded as primitive, barbaric and unworthy of preservation in the light of modern civilization and technological achievement. In many areas, this has been undoubtedly successful.
The English derived criminal law refers to the criminal system of law introduced by the British Administration. In the colony of Lagos, English common law, which included the common law of crime, was introduced bodily in 1863. But outside Lagos it was customary criminal law which, in its varying forms, still obtained even though the occasional ordinance was enacted against specific types of conduct for example: slave dealing, witchcraft. Later on in 1904 a criminal code was introduced to Northern Nigeria by the Lugard administration. The English derived criminal law includes the Criminal code and the Penal code, applicable in the Northern part of Nigeria. The Criminal code derives directly from the Queensland code in Australia and the Penal code from the Sudan penal code which was essentially based on Macaulay’s Indian penal code of 1860. The northern states adopted the Sudan Penal code because the country had identical, sociological and religious backgrounds with theirs. Thus as a result of identical cultural values, the Criminal code and the penal code have common broad features notwithstanding the differences for instance the general theories of criminal liability, defences and justification are the same although religious peculiarities have their impact on the formulation of some offences.
Culturally derived criminal law on the other hand refers to customary criminal law that is criminal law derived from the customs and traditions of the Nigerian people. They are largely unwritten laws.
The Nigerian criminal code is an unbalanced amalgam of both the English common law and the customary law with the former predominating. This is as evident in the 1993 amendment of Section 4 of the Criminal Code Ordinance which states that : No person shall be liable to be tried or punished in any court, for an offence except under the express provisions of the code, or some law, or some order-in-council made by His imperial majesty for Nigeria or under express provisions of some statute of the Imperial parliament which is in force in or forms part of the law of, Nigeria.’ This section can however not be considered in isolation. Customary law was therefore ‘saved’ notably by the 1993 Native Courts Ordinance as stated in Section10(1) and (2) which enacted that native courts should administer native law and custom, subject however to various provisos as to the humanity of the punishment imposed. This was further expatiated by the decision of the West African Court of Appeal’s judgement in the case of Gubba v Gwandu Native Authorities.  There has never been any real effort to weave together the two distinct and different cultural values for the purpose of evolving an integrated criminal policy. Thus there exist some differences between English derived Nigerian criminal law and Nigerian customary criminal law.
One of the differences that exist between the English derived criminal law and the culturally derived criminal law is that the English derived criminal law is universally accepted while the latter is significantly different and varies from culture to culture. In the south, there were numerous relatively simple systems of social norms based on the unit of the family, the village or the groups of villages. In the North, there was the highly systematized and complex Moslem law of crime and there even existed ‘schools’ of jurists, and even differences within them, though the dominant one was the Maliki school. Therefore, there exists as a major difference, the universality of the English derived criminal law as against the significantly different culturally derived criminal law.
Another major difference between the English derived criminal law and culturally derived criminal law is the outstanding feature of the customary criminal law (apart from the Moslem law) as being unwritten. The English based criminal law on the other hand is written and codified. After being introduced into the colony of Lagos and the development of a centralised government, the British administration felt a need for a worded, concise and unified set of criminal principles to be applied in British courts. In 1904, the Lugard administration in Northern Nigeria introduced by proclamation a Criminal Code whose purpose, the preamble stated was to declare, consolidate and amend the criminal law. It was extended in 1916 to the whole country after the unification of Nigeria in 1914. This code was modelled closely on the code introduced into the State of Queensland in Australia.
Furthermore, the formulation of legal rules is to a very large extent based on ethical considerations. These on their part have their roots in the religious, political, economic and moral foundations of the society. Thus, the ethical values of a monogamous, monotheistic and individualistic society, that is the English common law society(and by extension the English derived criminal law to some extent) is bound to different from that of a polygamous, polytheistic and collective society, that is the Nigerian society(culturally derived criminal law).
Moreover, the level of political awareness and sophistication to a very great degree affects the content of any legislation which may be formulated. Therefore some offences which were punishable by customary law were regarded as flimsy by the British administration and while punishments for some offences under the customary law were regarded as extreme by the British administration for example amputation for stealing.
It is usually asserted in African states of cultural development that the ‘civilised people’ colonised them and gave them their own (colonial masters) culture in order to civilise them. Like the biblical parable, it was like putting new wine in an old wine skin. It may be stated that the old wineskin did not burst notwithstanding.                                                                  The effect of Nigeria’s inherited criminal code is an integrated and planned criminal policy which does not aim at the preservation of ethnic or local differences in the formulation of the theories of criminal responsibility, ingredients of offences and defences. Rather, it ensured universality of its principles.


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