In the busy corridors of our Courts of Law, daily battles for justice are waged according to laws that predate even the notion of Nigeria. For us, our Criminal and Penal Codes are not just statutes; they are the foundation stones of our entire criminal justice architecture, shaping how crimes are defined, prosecuted, and punished. Yet, somewhere between a charge sheet and a judgment, an uncomfortable truth lurks: these codes were never designed for us, yet 100 years later, they still govern us.
The problem is not just that our laws are old. It’s that they were never truly ours to begin with. Although the Penal Code underwent a further review to harmonize it with Islamic traditions in 1958, even this revision served as more of a political than democratic imperative, Nigeria’s Criminal Code (mostly applied in the South) and Penal Code (used in the North) are legal imports. Originally adopted in 1904, our Criminal and Penal Code Laws are based on the Queensland Criminal Code of 1899, a legal transplant from Australia—then a Penal Colony.
In case you’re confused, Penal Colonies were settlements established for exiled prisoners expelled from the United Kingdom. These persons were placed in a remote location (the Penal Colony), often to live under harsh conditions. The goal of these colonies was twofold: punishment and colonial expansion.
This is what scholars call a “legal transplant” surgically imposing a borrowed, foreign legal system on another jurisdiction. Legal transplants can work when adapted thoughtfully, but when arbitrarily imposed on cultures with different norms and histories, they create a dangerous disconnect between law and society. As Kahn-Freund noted, “the degree of receptiveness of a foreign law depends upon the closeness of the fit between the foreign institution and the host society.”
In Nigeria, this transplant was neither organic nor deliberate. This operation was carried out without legal anesthesia, it ignored our own customs, restorative practices, and communal approaches to justice. Instead, it enforced hierarchy, obedience, and silence.
Even Queensland, Australia whose 1899 Criminal Code served as the template for Nigeria’s, has significantly reformed its own code, incorporating modern provisions on domestic violence, digital crime, coercive control, and broader definitions of consent. Meanwhile, Nigeria continues to apply statutes written in a different century, for a different purpose, to govern a society that has transformed beyond recognition.
In essence, the legal transplant we inherited was either a prototype long discarded by its originators or a tool of control designed exclusively for colonised subjects. If it was never good enough for Britain, why should it remain good enough for Nigerians?
To this day, our Codes bear the markings of that colonial origin. They criminalize broadly, but often fail to protect specifically. Modern definitions of old concepts such as rape, for example, are narrow and gender-biased. Emotional and economic abuse are not recognized, not to talk about cybercrime and more recent developments.
This is not an academic problem, it affects the lives of our fathers, mothers, brothers and sisters across Nigeria everyday.
Lucky Dube’s warning “They don’t build no schools anymore, all they build are prisons, prisons” is a haunting reminder that a justice system obsessed with punishment, but indifferent to prevention or rehabilitation, will only multiply the very problems it claims to solve. In Nigeria, our criminal laws still reflect this punitive obsession. They were not designed to restore, to reintegrate, or to heal, they were built to control.
Perhaps this is why we have lived with such a contradiction for so long. This is the Nigerian Syndrome. It is something akin to Stockholm Syndrome, a psychological condition in which the hostages begin to identify with their captors. We are a people captured by a legal system, born under colonial subjugation that we continue to treat as sacred. Every Federal and State government since independence has used these laws, sometimes even reenacting them, yet none has truly embarked on the process of rewriting them to meet the needs of their people. Lagos State would be a worthy example but so much more needs to be done.
But the consequences are real. When laws fail to speak the language of the people, they stop delivering justice. They become scripts—recited by judges, enforced by police, but disconnected from the lived realities of those they claim to serve.
But change is possible. Across the country, reform efforts are gathering momentum. The Rule of Law and Empowerment Initiative (aka Partners West Africa), with the support of the MacArthur Foundation, has done remarkable work helping states modernize their criminal laws. Their persistent efforts are proof that with political will and community input, we can build a justice system that speaks our language. I have had the privilege of serving as Lead Consultant in the review of the Penal and Criminal Codes for some States, a process that has demonstrated the possibilities of reform when rooted in local realities.
Under the Nigerian Constitution, the residual powers of the States are affirmed by a community reading of Section 4(7) together with the Exclusive and Concurrent Legislative Lists in the Constitution. Matters not expressly listed in either of these Lists fall within the residual powers of State Houses of Assembly, including the power to make laws for the peace, order, and good government of their territories. Section 315(1) (a) of the Constitution further preserves existing laws until amended by the appropriate legislature. The Supreme Court in A.G. Lagos State v. A.G. Federation (2004) 18 NWLR (Pt. 904) 1 affirmed this competence, recognizing that States are not mere spectators in criminal law reform. The responsibility, and the opportunity, to rewrite outdated codes therefore rests squarely with our State governments.
The Way Forward
An ancient Igala proverb says “when the music changes, so must the dance.” Our music has changed; our laws must keep pace. We don’t need to burn down the house, but we do need to renovate the foundation. A reformed criminal code must:
a. Define crimes in culturally relevant and socially contemporary terms, including digital violence, gender-based abuse, and community harm.
b. Embed victim protection measures into the fabric of our criminal jurisprudence.
c. Align with modern constitutional values, including equality before the law, fair hearing, and human dignity (Sections 36 and 34 of the 1999 Constitution).
d. Incorporate restorative justice models where appropriate, especially for non-violent offences.
e. Decriminalize conduct that stems from the status of vulnerable persons or persons with disabilities.
State governments can start by consolidating learning from more recent laws which already provide a more modern framework for addressing gender-based crimes. They must also constitute Criminal Law Reform Committees with wide, massive, public input from traditional leaders, survivors, prosecutors, legal experts and NGOs such as Partners West Africa who have demonstrated immense capacity in criminal justice reform. The goal is not to romanticize tradition but to reconnect law to local legitimacy.
Final Thoughts
Our Criminal Code may be written in English, but it is not written in our voice. Until we correct that, we will remain trapped in a system designed for different people, in a different era, for different ends. Justice will be delayed, not just by clogged courtrooms, but by the cold, hard letters of a law that never belonged to us.
Laws are not sacred because they are old. They are sacred when they serve. And when they stop serving, they must be rewritten. We owe ourselves nothing less.
Folarinwa M. Aluko is a Legal Practitioner and Partner in the Law Firm of Trumann Rockwood Solicitors. He can be reached at fmaluko@trumann-rockwood.com
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