Accessory After the Fact for Spouses: An Inconsistent Nigerian Law

Accessory After the Fact for Spouses: An Inconsistent Nigerian Law


Spouses being accessory after the fact in any criminal offense enjoy complete immunity from criminal liability. This protection, provided by the Criminal Code Act, exempts husbands or wives from being held liable when they assist each other in escaping punishment. Although the rationale for this rule is reasonable, as it is founded on the principle of the unity of personality and the tendency of spouses to cover up each other’s crimes due to emotions and family ties, I agree with the rationality and reasonableness of this rule.

However, Section 10 of the Criminal Code Act, which establishes this rule, creates complications by limiting its scope to shield only husbands and wives of a Christian marriage. This limitation contradicts the provisions of Section 10 of the 1999 constitution. This article will discuss this rule, its implications, and the material contradictions, with the highest law of the land shedding light on the need for equal treatment of couples not in Christian marriages.



Spouses As Parties to an Offence 

In every criminal offense, the level of involvement of the parties determines the extent of liability, and their punishments are prescribed based on the level of involvement and the role each person plays when an offense is committed.[1] In the realm of felonies, common law classified individuals involved in criminal acts into two categories: principals and accessories.[2] The Criminal Code Act has properly provided and defined the various actors and parties to an offense including an accessory.

However, it is instructive to note that for a person to be implicated as a party to an offense, the person must fulfill two elements that must always be present in every offense to make them liable. The person must physically act in a manner or way to commit, aid, or assist in the offense in question (actus reus). Secondly, the accused person must have committed the act constituting the offense with the intention or knowledge of committing, aiding, or assisting in the commission of the offense ( mens rea). without the Act and the knowledge or intention to act a person can generally not be a party to an offence. These two elements must be present and working at the same time as held in EZE v. STATE[6].

A principal party to an offense is any person who directly performs the act or commits the omission that constitutes the offense. Section 7 of the Criminal Code Act Provides that the following actors will be regarded as principal offenders. The person who performs the act or commits the omission that constitutes the offense is a principal offender. Any person who does or omits to do an act to enable or aid another person in committing the offense is a principal offender.

Furthermore, the section provides that every person who aids another person in committing the offense and any person who counsels or procures any other person to commit the offense is a principal party. It is imperative to note that all the classes of parties mentioned in this section have the same extent of criminal liability.

Husbands and wives can be principal parties to an offense and would be liable to the extent of the punishment prescribed for principal offenders. The law does not provide any protective shields for husbands and wives who aid, abet, or participate in the commission of a particular offense as principal parties.

In a report released by the Office of Inspector General (.gov) on October 5, 2023, it was revealed that a husband and wife were sentenced to prison for their involvement in an $8 million healthcare fraud scheme. The owners of a home health agency in Missouri City were ordered to face legal consequences for their actions.

On March 23, 2023, Channels Television reported that Ekweremadu, aged 60, along with his wife Beatrice, aged 56, and Dr. Obinna Obeta, aged 51, were found guilty of being involved in organ trafficking. The charges included facilitating the travel of a young man to Britain with the intent of harvesting his kidney for a transplant operation on their sick daughter.

Spouses As Accessory after the Fact

According to Brett and Mclean an accessory after the fact is defined as follows: “A person who receives or assists another who is, to his knowledge, guilty of an offense, to enable him to escape punishment, is said to become an accessory after the fact to the offense. This definition has been quoted with approval in the Nigerian case of ABACHA V. THE STATE (2002) LPELR-SC.290/2001. However, while spouses can be held liable as principal offenders, a husband and wife are afforded a shield that grants them immunity from liability accessory after the fact to an offense.

Section 10 of the Criminal Code provides as follows: A person assisting someone, with knowledge of their guilt, to evade punishment for an offense becomes an accessory after the fact. However, under the Criminal Code Act, a wife is not considered an accessory after the fact when aiding her guilty husband or another person in his presence and by his authority. Similarly, a husband does not become an accessory after the fact for assisting his guilty wife. These provisions, outlined in Section 10, apply specifically to spouses in Christian marriages. The Section is unfairly discriminatory as it offends the provisions of the constitution.

Inconsistent and Unjust

The provision in Section 10 of the Criminal Code Act, which grants a protective shield for spouses in Christian marriages as accessories after the fact, is criticized as unfairly discriminatory. This protection is seen as solely based on religious grounds and is considered inconsistent with the principles outlined in Section 10 of the 1999 constitution, which emphasizes equality before the law.

According to Section 10 of the 1999 Constitution, Nigeria shall not Adopt any religion as a state religion, the word Christian marriage provided in that section shows that the privilege of husband and wife not being an accessory after the fact does not cover Customary marriages. It is instructive to note that according to the Marriage Act, there are two types of marriage recognized under Nigerian Law, this are, marriages under the Act and Marriages under customary law which also extends to Islamic Marriages.

The drafter of this section of the Criminal Code appears to heavily favour marriages under the Act, specifically Christian marriages while disregarding customary and Islamic marriages. In my submission, this preference is inconsistent with Section 10 of the constitution, as it designates Christian marriage as the only recognized marriage deserving of such protection. Additionally, it contradicts the provisions of the Marriage Act.


Nigeria is a purely secular state with over 100 religious practices. The idea of inserting a provision with significant legal implications, such as this one, is considered a flawed law. I recommend that all provisions and acts should eliminate the words “Christian” or “Muslim” from our legislation, as these contribute to religious divides. Specifically, the term “Christian marriage” should be removed from Section 10 of the Criminal Code and replaced with a more secular phrase to encompass all types of marriages. By doing so, the protective shield currently provided to Christian marriages would extend to all forms of marriages.



  1. Okonkwo, C.O. and Naish, M.E., 1980. Criminal law in Nigeria (pp. 157-79). London: Sweet & Maxwell.
  2. Perkins, R.M., 1940. Parties to Crime. U. Pa. L. Rev.89, p.581.
  3. Smith, A.T.H., 1978. On actus reus and mens rea. Reshaping the Criminal Law: Essays in Honour of Glanville Williams (1978) at95.
  4. Sayre, F.B., 1932. Mens rea. Harvard Law Review45(6), pp.974-1026.
  5. Perkins, R.M., 1940. Parties to Crime. U. Pa. L. Rev.89, p.581.
  6. (2017) LPELR-CA/OW/304C/2014
  7. Allott, A.N., 1965. Criminal Law in Nigeria (Excluding the North). By Cyprian O. Okonkwo and Michael E. Naish. London: Sweet & Maxwell; Lagos: African Universities Press; 1964.(Law in Africa Series No. 9). Pp. xxxviii, 378.£ 2. 10s. Africa35(3), pp.328-329.

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