1.

0 Abstract

The faith-based narrative that has been reiterated from individual to individual often masked in
plentiful words is that things would become better at some point; a narrative most people are
rapidly losing faith in. The mindset of an average Nigerian is that Nigeria is a bad place to live in;
this is deeply forged in numerous sordid experiences that are almost transcending into a
culture. In a country where standards are subpar, where does the principle of legality stand?
Even in other parts of the world where things are seemingly stable, How relevant and
important is the principle of Legality?

2.0 Introduction

2.1 What is crime?

The meaning of crime can be overly ambiguous if it is overthought, Section 36(12) CFRN 1999
provides:

“…a person shall not be convicted of a criminal offence unless that

offence is defined and the penalty therefore is prescribed in a written

law.”

From the aforementioned, it is natural to decide that for a 'crime' to be considered as a crime,
it must appear in written law and punishment must have been ascribed to the act or omission.
There is also a significant root Latin phrase “Nulla poena sine lege” which means “no
punishment unless by law”. This Latin phrase reinforces the idea that for an act or omission has
to be in written law with attached punishment for it to be a crime; this nullifies perceived views
and reliance on intuition for the definition of crime. The principle of legality stems from this
established idea.
For an individual to be found guilty of a criminal offence, two characteristics have to considered
with the foregoing facts, an actus reus and mens rea, the Latin words for guilty act and guilty
mind. In simple terms, these mean there must be intent as well as it's physical equivalent in
form of an act or omission/omission to act on the part of the individual.

2.2 Legality

"Legality can be defined as an act, agreement, or contract that is consistent with the law or
state of being lawful or unlawful in a given jurisdiction.

According to the Merriam-Webster Dictionary, legality is the attachment to or observance of

the law. It is also the quality or state of being legal and my law dictionary defines the concept
of attachment to the law as an Implied warranty that an act, agreement, or contract strictly to
the statutes of a particular jurisdiction. Business dictionary also further states with relation to
the Legal principle that an accused may not be prosecuted for an act that is not declared a
crime in that jurisdiction is actually about the Principle of legality which is part of the overall
concept of legality."

--- According to Wikipedia. (legality) ***little changes here and there

2.3 Principle of legality

"The principle of legality is the legal ideal that requires all law to be clear, ascertainable and
non-retrospective. It requires decision-makers to resolve disputes by applying legal rules that
have been declared beforehand, and not to alter the legal situation retrospectively by
discretionary departures from established law. In criminal law, it can be seen in the general
prohibition on the imposition of criminal sanctions for acts or omissions that were not criminal
at the time of their commission or omission. The principle is also thought to be violated when
the sanctions for a particular crime are increased with retrospective effect. The principle can be
varyingly expressed in Latin phrases such as Nullum crimen, nulla poena sine praevia lege
poenali, nulla poena sine lege and nullum crimen sine lege."
According to definitions.net (principle of legality meaning)

3.0 Assessing the Importance, relevance and Observance of Principle of Legality

Jerome Hall said in his book ‘GeneralPrinciples of Criminal law (1981) that

“The principle of legality is, first of all, a summation of the form of all the penal laws, of what
distinguishes them as positive laws from all other rules; and it qualifies and is presupposed by
everything else in penal theory".

This gives us another perspective of the same idea. Principle of Legality is a crucial and
indispensable part of any justice system, to quantify or demean it's importance would be a
inconceivable task. Power when left unchecked can be easily abused even with open-minded
intentions. It makes things simple as acceptable punitive measures have been attached to
particular crimes and all these have been properly documented beforehand, without basing
decisions on discretion or any other factor; this provides guided efforts to not go overboard or
to be unfair.

There are four key characteristics that will ensure the fulfillment of principle of legality:

1.No one shall be punished for an offense that is not valid or in written law at the time of the
commission or omission of the act.

2.A heavier punishment shall not be exacted other than punishment prescribed or contained in
the written law.

3.Every individual tried for a criminal offence shall be believed innocent until proven guilty.

4. Free and fair trial must be conducted.

These characteristics are contained in the works of knowledgeable individuals such as

Montesquieu, A.V Dicey and Feuerbach. These guidelines provide a fair setting for everyone
and guides against misuse of power especially against people who are seemingly considered as
threats to the state or because of prejudice. Since these laws have been started beforehand, it
prevents breach of the principle of legality on any ground.

The principle of legality as stated earlier in other expressions is an essential part of any
democratic government which apparently shows in how many countries of the world has
embraced it, both developed and developing nations. Nigeria is not an exception as it is stated
in the 1999 constitution, in Cap IV titled fundamental rights, S33 to S46 embody these
principles. S36 (1) for instance states

“In the determination of his civil rights and obligations, including any question or
determination by or against any government or authority, a person shall be
entitled to a fair hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to secure its independence
and impartiality.”

Other sections discuss such fundamental human rights such as freedom of expression(S39i),
freedom of association (S40i), a person shall not be convicted of a criminal offence unless that
offence is defined and the penalty therefore is prescribed in a written law (S36xii), right not be
punished twice for the same offence, presumption of innocence till guilt is established and
many more.

Other countries apart from Nigeria especially developed countries hold the principle of legality
in high regard, the principle is essentially one of the cores of most justice systems and can even
be found in the criminal facets in the Universal Declaration of Human Rights of 1948 which
states in article 2, page 2 that

“No one shall be held guilty of any penal offence on account of any
penal act or omission which did not constitute a penal offence at. the time it
was committed. Nor shall a heavier penalty be imposed. other than the one
applicable at the time the offense was committed”
The European Union Charter of Fundamental Rights in Articles 47 titled “Right to an Effective
Remedy and a Fair Trial” states that everyone whose rights and freedoms guaranteed by the
law of the Union are violated has the right to an effective remedy before a tribunal. That
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal previously established by law. Everyone shall have the possibility of being
advised, defended and represented and that legal aid shall be made available to those who lack
sufficient resources so far such aid is necessary to ensure effective access to justice.

Article 49 of thesame charter titled "Principles of legality and Proportionality of Criminal

Offencesand Penalties" respectively states in S1 and S3 that

1. No one shall be held guilty of any criminal offence on account. of any

act or omission which did not constitute a criminal offence under national law
or international law at the time when it was committed. Nor shall a heavier
penalty be imposed than that which. was applicable at the time the criminal
offence was committed. If, subsequent to the commission of a criminal offence, the
law provides. for a lighter penalty, that penalty shall be applicable.

3. The severity of penalties must not be disproportionate to the criminal

offence.

To buttress this further, Part 3 of the statutes of the International Criminal Court titled
‘General Principles of Criminal Law states in Article 22(I & II) that a person shall not be
criminally responsible under this Statute unless the conduct in question constitutes, at the time
it takes place, a crime within the jurisdiction of the Court. In case of ambiguity, the definition
shall be interpreted in favour of the person being investigated, prosecuted or convicted. Article
24 reads

1. No person shall be criminally responsible under this Statute for

conduct prior to the entry into force of the Statute.
2. In the event of a change in the law applicable to a given case. prior to a
final judgement, the law more favourable to the person being investigated,
prosecuted or convicted shall apply.

One contradiction with Nigerian statutes is the absence of the Immunity clause with regards to
official capacity of individuals. Article 27 of the ICC statute states that

1. This Statute shall apply equally to all persons without any distinction based
on official capacity. In particular, official capacity. as a Head of State or
Government, a member of a Government or parliament, an elected
representative or a government official shall. in no case exempt a person
from criminal responsibility under this Statute, nor shall it, inand of itself,
constitute a ground for reduction. of sentence.

2. Immunities or special procedural rules which may attach to the official

capacity of a person, whether under national or international law, shall not
bar the Court from exercising its jurisdiction over such. a person.

It becomes impossible for persons to escape criminal trial on grounds of immunity within the
international community.

Summarily, these principles are primarily concerned with the form which criminal llaw must
take. When there is a breach of the law by persons corporate or individual,the procedures to be
taken and sanctions applicable must not be beyond that already specified by the law. The
principle is also thought to be violated when the sanctions for a particular crime are increased
with retrospective effect. However, with particular reference to Nigeria, it becomes necessary
to pay special attention to these principles and to distinguish their presence in Nigerian law
either as a myth or as reality, either as idealism or as fact. To adequately answer this question,
one must juxtapose some of these principles alongside with contemporary issues and events in
modern Nigeria and see if they have some weight in the Nigerian society or if theyare just
meaningless words to which there is no adherence.In
3.9 Conflict of Interest

In 2013, a man called Edward Snowden, a former CIA systems administrator, circulated
classified government files to the press about the existence of surveillance programs that the
CIA was utilizing to spy on people. According to the U.S. government and many others he
transgressed the Espionage Act of 1917, which identified the leak of state secrets as an act of
treason. Yet despite the fact that he broke the law, Snowden argued that he had a moral
obligation to act. Some agreed, some disagreed, Journalists were conflicted on which side to
choose. As stated earlier, one of the minor and diverse definition considered crime as act
against public or societal good so this is difficult to choose a side on if you also think about the
possible human right violation by the gobernment. Ultimately, it is still a crime because it is in
the written and punishment was attached despite moral standing. Edward now stays in a
country where he can't be extradited. Edward might also have been afraid as he would not be
judged and treated on fair conditions.

4.0 Conclusion

There was a time when the principle of legality was completely irrelevant in Nigeria as history
tells us, that is during the military regime. This time exemplifies the dire ramifications of
absence of principle of legality, the disparity between the times is one that is immense.
Although the difference is tremendous in the use of principle of legality in this democratic state
that we are, proper and perfect application is found wanting. It isn't followed to the latter and
this has recently created an unsafe atmosphere especially for the youths. Most developed
countries adhere strictly but not perfectly to the principle of legality while a majority of
developing nations are struggling with it.

The principle of legality is a rule of statutory interpretation: if Parliament intends to interfere

with fundamental rights or principles, or to depart from the general system of law, then it must
express that intention by clear and unambiguous language. In 1908, in Potter v Minahan, Justice
O’Connor characterised this principle as a standing prediction of parliamentary intent:
It is in the last degree improbable that the legislature would overthrow fundamental principles,
infringe rights, or depart from the general system of law, without expressing its intention with
irresistible clearness.

In Electrolux, however, Chief Justice Gleeson stated that the principle of legality is ‘not merely a
common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is
a working hypothesis, the existence of which is known both to Parliament and the courts, upon
which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.’
Chief Justice Gleeson’s statement has since been endorsed by the High Court on numerous
occasions. But what does it mean to describe the principle of legality as an aspect of the rule of
law?

Chief Justice Gleeson’s statement has two elements. The first element is that the principle of
legality ensures that courts are slow to cut down rights and doctrines that are essential in a
society governed by the rule of the law.

First, the principle sets its face against retrospectivity. Parliament must use clear and
unambiguous language to enact a statute ‘which falsifies, retroactively, existing legal rules upon
which people have ordered their affairs, exercised their rights and incurred liabilities and
obligations.’ The rule of law requires laws to be prospective because it is radically unfair to hold
a person responsible for violating a law that did not exist at the time he or she acted.

Second, the principle jealously protects access to the courts. In Plaintiff S157/2002 v
Commonwealth, the High Court applied the principle of legality to narrowly interpret a privative
clause: a statutory provision that attempted to prevent the courts from reviewing the
lawfulness of the Executive’s acts and decisions. Chief Justice Gleeson explained this approach
with a quote from Lord Denning:

If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts,
the rule of law would be at an end.

Third, the principle protects against departures from equality before the law. According to A V
Dicey, it is part of the rule of law that ‘every official, from the Prime Minister down to a
constable or a collector of taxes, is under the same responsibility for every act done without
legal justification as any other citizen.’ In Puntoriero v Water Administration Ministerial
Corporation, the plaintiff sued a statutory authority for negligently releasing polluted water into
an irrigation scheme, which caused damage to farmers. The authority attempted to rely on a
sweeping statutory immunity from civil liability. Relying on the principle of legality, the High
Court construed the immunity strictly. The general terms of the immunity were not sufficient to
shield the authority from liability for its conduct. It was held legally responsible just like any
other person.

Fourth, the principle of legality protects the core elements of a fair hearing. Parliament must
speak with irresistible clearness to dispense with the rules of natural justice, the presumption of
innocence and the privilege against self-incrimination, the criminal standard of proof, and the
principle that courts sit in public.

The principle of legality protects these fundamental rights and principles because it requires
courts to adopt a conservative approach to statutory interpretation, which errs on the side of
their preservation. In the words of Chief Justice French, if a court is faced with “constructional
choices” about the meaning of a statute, then it must adopt the meaning which minimises the
statute’s interference with those rights and principles.

The second element of Chief Justice Gleeson’s claim is that, where Parliament does interfere
with these rights and principles, that interference must be unambiguous. This reflects a core
element of the rule of law: the law must be clear and accessible. If people are to order their
affairs by or face penalties because of the law, then they must be able to find out what it
requires. As Lord Diplock noted in Black-Clawson Ltd v Papierwerke AG:

The rule of law as a constitutional principle requires that a citizen, before committing himself to
any course of action, should be able to know in advance what are the legal consequences that
will flow from it. Where those consequences are regulated by a statute the source of that
knowledge is what the statute says.

The principle of legality cannot overcome dense or labyrinthine legislation. But it does ensure
that fundamental rights and principles are not abrogated by general or ambiguous words. Lord
Hoffmann noted in R v Secretary of State for the Home Department; Ex parte Simms that there
is ‘too great a risk’ that the full implications of general or ambiguous words may be unclear on
the face of the statute, and thereby pass ‘unnoticed in the democratic process.’ The principle of
legality means that Parliament cannot lurk in the dark corners of a broad, vague power. It must
bring any departure from the general system of law into the light of ‘irresistible clearness’, so
that people may look at the statute and know what legal consequences flow from it.

There is tension between these two elements of Chief Justice Gleeson’s statement in Electrolux.
In steadfastly protecting fundamental rights from legislative intrusion, courts may be tempted
to depart from the principle that a statute should mean what it says.
This tension was clear in the House of Lords’ decision in R v Secretary of State for the Home
Department; Ex parte Anufrijeva. Ms Anufrijeva was an asylum seeker. A government official
refused her claim for asylum in November 1999. Her welfare payments were cancelled as a
result, but Ms Anufrijeva was not notified of this decision until April 2000. Ms Anufrijeva
challenged the government’s cancellation of her payments during that time. The relevant
regulation stated that ‘in the case of a claim for asylum which…is recorded by the Secretary of
State as having been determined’, the person ceases to be entitled to payments ‘on the date on
which it is so recorded.’

The majority held that the government had to give notice to the person concerned before a
decision constituted a ‘determination’ with legal effect. Lord Steyn stated that:

The rule of law requires that a constitutional state must accord to individuals the right to know
of a decision before their rights can be adversely affected. The antithesis of such a state was
described by Kafka: a state where the rights of individuals are overridden by a hole in the
corner decisions or on the door in the early hours. That is not our system.

Notice was essential for a person to challenge an adverse administrative decision in the courts if
he or she chose to do so. The general words of the regulation were not sufficient to displace
this fundamental principle. The government’s failure to make the payments was unlawful.

— Jack Maxwell
https://www.ruleoflaw.org.au/the-principle-of-legality/

(Principle of legality)