NIGERIA AND ARGENTINA CRIMINAL LAW: A COMPARATIVE ANALYSIS

 

1.0 INTRODUCTION

1.1 THE NIGERIA CRIMINAL LAW

 

The Criminal Law is the principal law on crimes. It is not contained in any single statute book or even a fend. This tends to suggest that a good way to study the criminal law is  to study one statute after another. This may prove difficult because the catalogue of Criminal Law has not been compiled, nor is any attempt being made. Since the Criminal Law is all about crime, a better approach may be to study one crime after another. The number of acts and omissions that are forbidden by Criminal Law are inexustable. More are still being created directly or indirectly few are de-criminalised.  The existing ones  are either expanded or contracted in extent and scope through judicial interpretation.

There may be another approach. Form the works of earlier writers,  it may be possible  to isolate certain features that may be common or different in a majority of crimes and make those features the subject of study.  This is the approach adopted in this course.

The Criminal Law is a reflection of the fundamental character and intellectual life of the society in which it operates. Customary Criminal Law once prevailed but It was largely unwritten. It has given way to written law. Thus Customary Criminal Law has remained part of the law of crime to the extent it is written.

This course consists of 21 Units of study and adequately takes care of the conveniences of the students whom we know are working and at the same time learning. This Course Guide offers you in a nutshell, what the Criminal Law is about:  it gives you an insight  into the course materials which have been deliberately compressed in order to ensure that you are able to cover as much as possible within the given period.

 

 

1.2 THE ARGENTINA CRIMINAL LAW

The Argentine nation adopts for its democratic government the Representative, Republican and Federal form. It is representative because the country is governed by representatives of the people. It is republicanbecause people elect their representatives through vote, because the country is governed by a tripartite system made up of an Executive Power, a Legislative Power, and a Judicial Power, and because Argentina adopts a written Constitution. Finally, it is federal because the provincial governments keep their self-rule despite responding to a common government (The National government). The nation adopts this form of government as established by the National Constitution[1], passed on 1853.

This text was modified in 1860 when the province of Buenos Aires is included, since it was not part of the Argentine Confederation in 1953.

 

Then, in 1949, a constitutional convention replaced the 1853/1860 text for a new one which was rendered null and void by the provincial government through the April 27, 1956 proclamation that replaced the previous text. The National Convention approved the constitutional reforms on August 22, 1994 which became effective on August 24, 1994.

These reforms refer, fundamentally, to the organic part of the Constitution.

The Argentine Republic comprises 23 provinces and the city of Buenos Aires. The provinces are Buenos Aires, Catamarca, Corrientes, Córdoba, Chaco, Chubut, Entre Ríos, Formosa, Jujuy, La Pampa, La Rioja, Mendoza, Misiones, Neuquén, Río Negro, Salta, San Juan, San Luis, Santa Cruz, Santa Fe, Santiago del Estero, Tucumán, and Tierra del Fuego.

Each province has its own constitution which must state its administration of justice and municipal autonomy, and the scope and content of its institutional, political, administrative and financial orders.

 

Each province also elects its own authorities: Governor, Legislators and other provincial officers. They dictate their regional legislation through local institutions and are entitled to enter into international agreements as long as they abide by the national foreign policy and do not affect the Federal government faculties or the National public credit. Likewise, they are allowed to enter into partial treaties supported by the Federal government for the purposes of justice administration, economic interests and public interest works.

Provinces shall not execute partial treaties on political matters, enact commercial, interior or exterior navigation laws, set up provincial customs, mint currency, set up banks with bill issuance power without the Federal government authorization, dictate the Civil, Commercial, Criminal and Mining codes after being approved by the Congress, pass laws related to citizenship and naturalization, bankruptcy, currency forgery or state documents, establish tonnage rights or set up warship, neither shall they appoint or receive foreign agents.

 

The constitutional legal code established for the Argentine nation, since 1853, the above mentioned form of government, divided into the executive, legislative and judicial powers.

1.3 THE COMPARISM

Argentina’s criminal code, the Código Penal (CP), was adopted in 1921. The current CP was intended “to capture in a simple and pragmatically oriented text the basics of the Tejedor Code and the 1891 draft,” and to a significant extent it succeeded: the CP established a simple regime of sanctions, abolished the death penalty, and endorsed straightforward rules of responsibility and definitions of offenses. However, as Marcelo Ferrante notes, the numerous minor reforms and amendments adopted since 1921 have as is often the case with codes that are updated in piecemeal fashion “introduced complexity into an otherwise relatively simple text, often affecting the code’s systematicity.” Ferrante offers a particularly striking example of this in the area of punishment: possessing explosives in Argentina is now subject to longer imprisonment (5 to 15 years) than detonating the explosives and destroying goods or endangering human life (3 to 10 years) while human trafficking is about 10 to 15 years in Argentina.

In the year 1999 Nigeria move for the adoption of the criminal code of 419. Some offenses purnishable by law to mention but a few; consider the case of a person caught with explosive, the maximum time in prison is from 5 to 10 years then human trafficking in Nigeria can take from 10 to 30 years inprison.

 

1.4 JURISDICTION IN NIGERIA

Jurisdiction is genuine and fundamental in every proceeding in court. If a court adjudicates over a matter which it has no jurisdiction, no matter how brilliant the judgment is, its efforts and proceedings are nullity abinitio.

Jurisdiction may be by reference to constitution or composition of the court. The law specifies the number of judges that must seat in a given matter failing which the court cannot competently handle the matter. 

Jurisdiction may also be determined by geographical area of operation of the court.

The leading authority on the essentials of jurisdiction is the case of Madukolu V. Nkemdilim (1962) S.C.N.L.R 341. A court has jurisdiction:
i. When it properly constituted as regards members and qualifications of the members of the Bench and no number is disqualified for any reason.

ii. When the subject matter of the case is within its jurisdiction.
iii. And when the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

CFRN 1999 established seven (7) superior courts of record in Nigeria and confer on them both original and appellate jurisdiction in respect of certain matters.

CATEGORIES OF COURTS IN NIGERIA

1. Supreme Court 

2. Court of Appeal

3. Federal High Court 

4. High Court of the Federal Capital Territory 

5. High Court of a State

6. Sharia and Customary Court of Appeal of the Federal Capital Territory 
7. Sharia and Customary Court of Appeal of a State

SUPREME COURT OF NIGERIA

This is the highest in the hierarchy of courts in Nigeria. Section 232(1) of CFRN 1999 provides for the establishment of the Supreme Court.
The composition consists of the Chief Justice of Nigeria and such number of justice not exceeding twenty-one (21) as may be prescribed by an Act of the National Assembly.
Appointment of Chief Justice of Nigeria and other Justice of the Supreme Court are appointed by the President of the Federal Republic of Nigeria on the recommendation of National Judicial Council subject to confirmation of such appointment by the senate.
JURISDICTION

The Supreme Court has both original and appellate jurisdiction.
Original Jurisdiction

 Section 232(1) of 1999 CFRN provides that the Supreme Court shall to the exclusion of any other court have original jurisdiction in any dispute between:

(a) Federation and a State

(b) Between States 

(c) Original jurisdiction as may be conferred by the National 
Assembly.
Additional Original Jurisdiction conferred upon the Supreme Court by Section 232(1) shall to the exclusion of any other court, have original jurisdiction in any dispute between:

(a) National Assembly and the President 

(b) National Assembly and any State House of Assembly 

(c) National Assembly and a State of the Federation

APPELLATE JURISDICTION

An appellate court derives its jurisdiction from the statute creating it, including the 1999 constitution and other enabling statutory provisions.
The constitution provides that no any other court of Law in Nigeria has power/authority to hear and determine appeals from the Court of Appeal. The Supreme Court has the exclusive jurisdiction.
The decision/judgment of the Supreme Court is final and appeal lies to nowhere.

Section 234 of CFRN provides that for the purpose of exercising any jurisdiction conferred upon it. Supreme Court shall be properly constituted if it consists of not less than five (5) justices of S.C.
However, the Supreme Court shall be duly constituted by seven (7) justices. Such instances include the following 

(i) Interpretation of Constitution 

(ii) A question whether any of the provisions relating to fundamental human rights has been, is being or is likely to be contravened, or 
(iii) The exercise of its original jurisdiction

 However, there are occasions where the Supreme Court can set aside its decision in certain circumstances. Such cases are as follows:
(i) If the judgment is obtained by fraud 

(ii) If the judgment is a nullity such as when the court itself was not competent or 

(iii) If the court is misled into giving judgement under a mistaken belief that the parties had consented to it, or 

(iv) If the judgment is given in the absence of jurisdiction
The Chief Justice of Nigeria is empowered under the 1999 constitution. Section 234 to make rules for regulating the practice and procedure of the Supreme Court.

COURT OF APPEAL

Court of Appeal (CA) is next to the Supreme Court in the hierarchy of Nigeria Court System. The Court is established by Section 237 of 1999 CFRN. Its composition consists of a President of the Court of Appeal and other Justice of the Court of Appeal not less than forty-nine (49) in number. Three of which shall be learned in Islamic Personal Law and three others learned in Customary Law.
The President of the Court of Appeal is appointed by the President of Federal Republic of Nigeria based on the recommendation of the National Judicial Council subject to the confirmation of the Senate.
The Court of Appeal has both original and appellate jurisdiction.
Original Jurisdiction

Section 239 of the 1999 CFRN provides for the original jurisdiction of the Court of Appeal in respect of the following matters.
(i) Whether any person has been validly elected to the office of the President or Vice President.

(ii) Whether the term of the office of the President or Vice President has ceased or 

(iii) Whether the office of the President or Vice President has became vacant.

Appellate Jurisdiction

Section 240 of CFRN provides that the Court of Appeal shall have appellate jurisdiction to the exclusion of any other court of law in Nigeria to hear appeals from the Federal High Court, State High Courts including FCT and other Lower Courts.
The Court shall be duly constituted if it consists of not less than three (3) justices of Court of Appeal.

However, it could be more than three (3) justices depending on the nature and circumstances of the appeal or the matter before the court.
And Section 248 of the 1999 CFRN empowers the President of the CA to make rules for regulating practice and procedure of the court of Appeal.

FEDERAL HIGH COURT

This is a Federal Court established by Section 249(1) of the 1991 CFRN and consists of a Chief Judge and such number of Judges as may be prescribed by an Act of the National Assembly.
The Chief Judge and other Judges of the Federal High Court are appointed by Mr. President on the recommendation of National Judicial Council subject to the confirmation of the Chief Judge only. Jurisdiction of the FHC covers the entire country. 

The Exclusive Jurisdiction of FHC according to Section 251(1) of the 1999 CFRN covers the following matters:

(i) Revenue of Government 

(ii) Taxation

 (iii) Custom and excise

 (iv) Banking and Fiscal Measures 

(v) Operation of CRMA

(vi) Copyright, Trade mark, patent and designs 

(vii) Admiralty