Since 19592 a bill of rights has always been written into successive Nigerian Constitutions. When the Military took over the government of the country in 1966, it suspended3 or amended a number of the provisions of the governing 1963 Constitution. Quite remarkably Chapter 3 of that Constitution embodying the bill of rights is among the portions that have not been altered or suspended. It is therefore significant that even under the military regime the fundamental rights of the individual are protected by the Constitution. It must however be observed that, before the military intervention, the bill of rights was entrenched in the Constitution since the rights and the procedure for their enforcement could only be altered through a rather complicated process in which both the central and regional legislatures had to participate.4 Since the army take-over no part of the Constitution is entrenched. This is because section 4 of the 1963 Constitution providing for a stiff and complicated amending procedure of some of its provisions has been suspended5 and the Supreme Military Council is now competent to enact any laws on any topic by decree6 and no decree is required to be promulgated in any special form or through any special procedure. A decree is valid once it is signed by the Head of the Federal Military Government.7

In 1960, the Government made the first modern attempt at a comprehensive and formal statement of Ethiopian private law by promulgating Civil and Commercial Codes.2 An earlier source of private law rules, the Fetha Negast (Law of the Kings) has been part of the Ethiopian legal experience since at least 1686, when it was translated from the Roman-influenced thirteenth century Nomocanon of the Egyptian Coptic Church. There is no evidence that this compilation was ever officially promulgated, and it was often subordinated to “equity” (personal feelings of justice influenced by the need to maintain social harmony) and the territorial application of diverse and unrecorded traditional laws.3

The statutory (monogamous) marriage of Oba Oyekan of Lagos to one Miss Akitoye in December 19722, which caused a stir in both social and legal circles, has once more highlighted some of the perennial problems of trying to operate different systems of marriage arising from different cultures and societies within one legal system and jurisdiction. In order to appreciate fully the dilemma which Obas have occasionally had to face because of the multiple system of marriages, and their varying incidents, it is necessary to give a brief outline of these types of marriages. There are three different types of marriage in Nigeria: (i) statutory, (ii) customary and (iii) Islamic marriages. These coincide roughly with (i) Christian culture, (ii) traditional African culture and (iii) Arabic and Islamic culture.

This article is a survey of the process whereby codes of criminal law and procedure, having their origin in English law, were introduced into the British colonies and protectorates lying between the Sahara and the Zambesi. Such a survey, covering so large an area and period of time, must needs here be brief, but certain salient points emerge clearly from it. A codified body of criminal law and procedure, replacing the English common law and statutes of general application (as modified piecemeal by local Ordinances), had a great appeal to administrators, government law officers, judges and magistrates, and, whatever their differing views as to the respective merits of codes on the Indian, or more purely English, model, they were virtually all agreed that the introduction of such codes was an essential measure of reform. This is hardly surprising in view of the difficulties experienced by judicial officers, of whom the majority were the lay magistrates of the administrative service, in applying the uncodified English law without an adequate supply of text-books or English law reports.

The purpose of this article is to examine the sources of the general criminal law of Botswana.2 Prior to the creation of a Protectorate there existed in the country several indigenous systems of law operative within tribal areas which later collectively became known as the customary law. Included in this customary law was an ill-defined body of criminal law which can be termed the customary criminal law. We are not, however, examining the sources of this customary criminal law but rather of the criminal law which was originally introduced by statute on the establishment of the Protectorate and which was administered in a separate system of courts. Botswana is in an almost unique position in this respect3 because after the formal establishment of the Protectorate it received what may be broadly, but inaccurately, called the Roman-Dutch criminal law. Subsequently this was abolished and in its place a Penal Code was introduced which was based mainly on English law. The customary criminal law will be considered in this article but only in the broad context of its present position in the legal system and the effect of the general criminal law on its application.

As in other former British territories in Africa, the means of introducing a system of common-law rules into Botswana (then the Bechuanaland Protectorate) was the so-called “reception statute”. This was the device whereby at a particular date the laws of one country (usually England) were “received” wholesale by the colonial territory subject to various conditions contained in the reception statute itself. For Botswana, as for the other former High Commission Territories, Lesotho and Swaziland, it was not the English common law that was introduced but rather the law prevailing in the several parts of what is now South Africa. The General Law Proclamation of 19092 had the effect of introducing the Roman-Dutch law from the Colony of the Cape of Good Hope. Cape statutes promulgated after the date of reception were expressly declared not to be applicable in the territory, whilst amendment of the received law by local statutes was, of course, possible.

In 1969, Malawi accorded extensive criminal jurisdiction to its Local or Traditional Courts, in an attempt to make the administration of justice more palatable to the Government and the people. There has been a sufficient number of Traditional Court decisions to permit a tentative analysis of the results of this experiment. A deeper study awaits the passage of time. This article is an attempt to inject some objective evidence into the debate over the desirability of courts in which lay judges apply customary law.

“To the trained eye of a civilised community there is undoubtedly a considerable difference in the two designs set side by side and the one would hardly be likely to be mistaken for the other, but while broad principles laid down in English cases should be applied, the trade marks laws in this country should be administered with regard to local conditions…with a view to protecting not only a vast illiterate population little acquainted with pictorial representations but also the pioneers of trade who have earned a reputation among these illiterate folk by the quality of goods associated with some recognised mark such as a particular bird, animal, tree or other object…”2

This research began as an attempt to add a codicil to the work on homicide done by Paul Bohannan in the 1950s.2 Although Bohannan looked at events in the colonial period, his appreciation of the way in which cultural norms are expressed in legal institutions is still relevant. The criminal code in Western Nigeria is almost entirely British; it is applied by Nigerian judges to Nigerian accused who are counselled by Nigerian lawyers. The crime of homicide is universal. How a man kills, whom he kills, his motive for killing, and why it is most often a man who kills another man, may all be primarily determined by culture. The precise influence of social and cultural factors upon criminal patterns is impossible to measure. Yet to ignore what cannot be isolated is to commit a gross, but it seems to me inescapable, error. Often it seemed what was possible to tabulate was the least important information, that the conclusions which could be substantiated were trivial or irrelevant. Homicide recommended itself as a crime serious enough to test the efficacy of the Western Nigerian criminal justice system. Yet there are few conclusions here about the nature of that system’s authority. As elsewhere, in Western Nigeria the institutions of criminal justice seem to sit on the surface of the society. The criminal processes are unfamiliar to most people. Often after an accused is taken into custody it is difficult to find relatives or friends to inform about the progress of his case. At the moment of arrest, an accused steps into a totally strange, and largely foreign, world, one from which he may never return. What follows does not attempt to explain such subtle and difficult aspects of criminal law in Western Nigeria; it is an attempt to describe the way in which one particular serious crime was handled by Western Nigerian legal institutions during a specific period of time.

In 1963 a Minimum Sentences Act2 was passed which restricted discretion previously available to judges and magistrates when sentencing convicted persons. No new substantive offences were created by the Act but minimum sentences of imprisonment and corporal punishment were made mandatory for certain itemized property offences (“scheduled offences”). The Act aroused considerable interest both inside and outside this country and there is a long bibliography of comments on it.3 Much of the controversy concerned the mandatory infliction of corporal punishment, of at least 24 strokes, as part of the minimum sentence.4 Many members of the National Assembly were enthusiastic supporters of the corporal punishment provisions,5 although the Government leaders were more restrained: “They are not policies which we like”, said the Second Vice-President, Mr. Kawawa, “and I am convinced that Prisons Officers do not like them either; to administer corporal punishment is an unpleasant thing for any civilised person to do. But we have to make people recognize that to commit an offence against the nation or any of its citizens, is an evil thing which is a disgrace to the man who does it”.6

The Sudan Penal Code (henceforth abbreviated as S.P.C.) was, with minor modifications, copied in 1899 from the Indian Penal Code (henceforth abbreviated as I.P.C.), which in its turn was to some extent based on 19th-century English criminal law. Since its enactment, the S.P.C. has been revised and re-enacted once in 1925, but no significant changes were then effected. Law makers in the Sudan are at present engaged in the revision and reformulation of the laws of the country in an attempt to bring them into line with the modern needs of a changing society. It is the feeling of the present writer that the field of criminal law warrants the least intervention or modification because the S.P.C has, in its 75 years of existence, been largely satisfactorily interpreted and applied, resulting in what could legitimately be called the criminal law of the Sudan. This, however, is by no means tantamount to saying that the Code is satisfactory in all aspects and that there is no room for improvement. At any rate, it is not intended to discuss in this article what possible changes should be brought about in the Code as a whole, a task which would evidently need much more time and space. It is merely hoped to discuss critically some aspects of the law of homicide as laid down in the Code (and applied by the courts). In so doing it is hoped to show that in some respects the Sudanese law of homicide calls for modification of some of the provisions, while other provisions of the Code are so satisfactory that they may contribute to the resolution of problems faced by other legal systems.

In a recent case, reported below,1 the East African Court of Appeal held (SPRY, V.-P. dissenting) that, provided certain conditions were satisfied, compensation in the form of blood money might be awarded under section 176 of the Tanganyika Criminal Procedure Code. SPRY, V.-P., however, was unable to agree “that the award of blood money is authorised by section 176 of the Criminal Procedure Code”.