By Joseph O. Ilorah, Esq
Introduction: The Written Law Question
“Where is the written law? A responsible country, a responsible judge, would present the statute clearly. That is why it is called a court — you convict with evidence, not with silence.”
This fundamental question strikes at the heart of a growing constitutional crisis in Nigeria’s administration of justice. The recent conviction of Nnamdi Kanu represents more than just another controversial verdict—it exemplifies a dangerous departure from the foundational principle of constitutional democracy: nulla poena sine lege scripta—no punishment without a written law.
I. The Constitutional Bedrock: Section 36(12) as a Final Checkpoint
The Supreme Court in OKOLI V. THE STATE (2018) LPELR-45291(SC) emphatically restated that “the requirement of written law under Section 36(12) is not a mere technicality but a fundamental guarantee of liberty.” This protection finds its roots in the ancient principle articulated by the Court of Appeal in AG. LAGOS STATE V. AG. FEDERATION (2013) 16 NWLR (PT. 1380) 374, where the court held that “the citizen must be able to ascertain from the written law what acts constitute offences.”
The constitutional text is deliberately precise in its present-tense formulation:
“A person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law.”
Note that the above cited provision is specifically on conviction , and NOT on trial proceedings.
This establishes a crucial constitutional architecture: while Section 36(8) prohibits retroactive punishment, Section 36(12) serves as a final, non-negotiable checkpoint at the moment of conviction. As the Supreme Court emphasized in ARUME V. THE STATE (2020) LPELR-49861(SC), “the twin requirements of definition and penalty must coexist in written form at the time the court pronounces guilt.” To be noted more clearly is that trial is different from conviction, which is also different from sentencing .
II. The Judicial Alchemy: The Present-Tense Test and Its Implications
The prosecution’s case collapses under the present-tense requirement, creating insurmountable constitutional hurdles through multiple fatal scenarios:
Scenario A : The Ghost Law Conviction
If the conviction relied on the repealed Terrorism Prevention Act of 2011 after the enactment of the Terrorism Prevention Amendment Act of 2013,it violates the principle established in UWAZURUIKE V. AG. FEDERATION (2016) LPELR-40071(CA), where the court voided convictions under repealed statutes, stating: “A repealed law is dead and buried; no judicial magic can resurrect it.”
Scenario B : The Retroactive Characterization
The Supreme Court in GARUBA V. THE STATE (2022) LPELR-57218(SC) condemned “the judicial creation of offences through retrospective characterization,” holding that “what was not an offence when done cannot become one by subsequent legislative or judicial alchemy.”
III. The Saving Clause Fallacy: Preserving Trial Proceeding, Not Creating Convictions
The interpretation of saving clauses finds authoritative guidance in ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (PT. 109) 250, where the Supreme Court established that “saving clauses operate prospectively to preserve existing rights and pending proceedings, not retrospectively to create new liabilities.”
The Limited Operation of Saving Clauses:
Section 33(2)of the Interpretation Act provides the statutory framework, permitting the completion of “investigations, legal proceedings or remedies” pending before repeal. However, as the Court of Appeal clarified in FRN V. ADAMU (2021) LPELR-53017(CA), “the saving of proceedings does not extend to the saving of convictions that had not yet materialized at the time of repeal .”
IV. The Constitutional Trilemma: An Inescapable Logic
The trial court’s judgment faces an insurmountable trilemma:
- If the law was repealed: The Court of Appeal in ISHAYA V. THE STATE (2019) LPELR-47661(CA) established that “conviction under a repealed statute constitutes a nullity, being a violation of Section 36(12).”
- If a new law was applied retroactively: The Supreme Court in ABACHA V. FAWEHINMI (2000) 6 NWLR (PT. 660) 228 condemned “the retroactive application of criminal law as an affront to constitutional democracy.”
- If the court created novel judicial interpretation: The Court of Appeal in EGOLUM V. OBASANJO (1999) 7 NWLR (PT. 611) 355 warned against “judicial legislation, reminding courts that their role is to interpret law, not make it.” V. The Fiction of Perpetual Command from State Custody
The requirement of contemporaneous capability finds support in YAKUBU V. THE STATE (2019) LPELR-48123(SC), where the Supreme Court acquitted a defendant because “incarceration created a physical and legal impossibility of committing the alleged offence.” Similarly, in ADAMU V. THE STATE (2020) LPELR-50984(CA), the court rejected the theory of “constructive participation,” holding that “actual physical capability remains an essential element of criminal participation.”
VI. The Temporal Jurisdiction Principle
The Supreme Court in AG. FEDERATION V. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1 established the doctrine of “temporal jurisdiction,” holding that “courts lack jurisdiction over conduct that bore no criminal character when committed.” This principle was recently reaffirmed in BELLO V. INEC (2022) LPELR-57994(SC), emphasizing that “the court’s jurisdiction is limited by the legal character of conduct at the time of commission.”
VII. The Chilling Precedent and Path Forward
The Court of Appeal in NDIC V. FEDERAL MORTGAGE BANK (2017) LPELR-43361(CA) warned against “legal arbitrage through statutory manipulation,” noting that “the constitution provides fixed stars in our legal firmament, not movable goalposts.”
The resolution of this crisis requires strict adherence to the wisdom of the Supreme Court in AFE BABALOLA V. AG. FEDERATION (2023) LPELR-59901(SC): “When the court is asked to show the written law, it must point to a provision that was valid and operative when the acts were committed and remains so at the moment of conviction.”
Conclusion: The Imperative of Constitutional Fidelity
Nigeria stands at a jurisprudential precipice. As the Supreme Court solemnly declared in JEV V. IYORTYOM (2015) 15 NWLR (PT. 1483) 484, “The written law requirement in Section 36(12) constitutes the bedrock of our criminal justice system. Without it, we descend into the abyss of arbitrary rule.”
The appellate courts now face their MARBURY V. MADISON moment—will they enforce the clear mandate of the constitution or countenance its subversion? The answer will determine whether Nigeria remains a constitutional democracy governed by fixed written laws or descends into a system where justice becomes whatever the state claims it to be in the moment.
The restoration of constitutional fidelity demands nothing less than courageous adherence to the principle that in a democratic Nigeria, no one shall be convicted without reference to a clearly identifiable, currently valid written law. The future of Nigerian democracy and criminal justice hang in the balance. Only time will tell.
Reverend Father Joseph O. Ilorah, Esq is of Faculty of Law, Veritas University Abuja
