Is Adultery a Crime Under Nigerian Law?

Is Adultery a Crime Under Nigerian Law?

Adultery Under the Nigerian Law

By Takim Etta

Abstract.

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Adultery is a Serious growing concern in Nigeria, aggrieved parties who look up to the state for penal sanctions are sometimes left in shock as it doesn’t attract any penal sanctions, however, this is dependent on the area of  Jurisdiction where the act occurred. This is because the Criminal administration is governed by two separate codes, whose application is limited by jurisdictional constraints. More so, despite the absence of Criminal Relief from the southern states Adultery remains a civil wrong throughout Nigeria, which gives the parties the option of dissolution of Marriage or Continuity. This research work aims to educate the reader on the liability for the act of Adultery. And would answer the question- Is Adultery a Crime Under Nigerian Law? The research would use a Doctrinal and analytical method, with reliance on Legislation, Cases, and online sources. 

 

INTRODUCTION

The act of adultery occurs when a person engages in Sexual intercourse with someone other than the husband or wife.[1]  It is morally settled universally that adultery is a wrongful act.[2] Biblically God outrightly condemns the act of adultery,[3] even in customary practices of Nigeria the act of adultery is abhorred by the society.[4] The act of adultery remains a moral wrong throughout Nigeria, but a legal wrong only in northern Nigeria which is governed by the penal codes, adultery is not a crime in southern Nigeria.

CRIMINAL LIABILITY OF ADULTERY UNDER THE NIGERIAN LAW

A crime is an act that is punishable by the state; this is opposed to civil liabilities undertaken by private individuals. [5]  The act of adultery is not a crime in southern parts of Nigeria. This is because the constitution of the Federal Republic of Nigeria 1999 as Amended provides that a person shall not be punished for any criminal offense except the offense is first defined and the punishment is prescribed in a written law.[6]  The Case came up for determination by the Nigerian Court in Aoko v Fagemi,[7] where the court held that adultery is not a crime because it is not written in any law that governs criminal sanctions in southern Nigeria. There is nothing in the Criminal Code that suggests punishment for the Act of Adultery.

The Criminal Code is applicable in states of former southern Nigeria which are Lagos State, Ogun State, Oyo State, Ekiti State, Ondo State, Osun State, Edo State, Delta State, Rivers State, Cross River State, Akwa Ibom State, Bayelsa State, Enugu State, Anambra State, Imo State, Abia State.

This is also predicted by the fact that the criminal code was also modeled from a multi-faceted ethnic settlement with different religious backgrounds. This makes secularism the only option for the Draftsman of the Criminal Code.

However, the situation is different in northern Nigeria as adultery is a serious crime.[8] The penal code by Section 388 prescribes 2 years imprisonment as punishment for the offense of adultery. This is because the wide population in northern populations are Muslims[9] so the penal code was modeled in line with the laws of the Quran.  The Penal code is applicable in northern states of Nigeria which are: Kano State, Katsina State, Kaduna State, Sokoto State, Kebbi State, Zamfara State, Jigawa State, Bauchi State, Yobe State, Borno State, Gombe State, Adamawa State.

From the foregoing, those caught in the act of adultery in southern Nigeria are free from any criminal liability i.e. punishment from the state, whereas those who engage in the act in northern Nigeria would be held liable under the provisions of the penal code to two years imprisonment[10]

CIVIL LIABILITY ON THE ACT OF ADULTERY

Adultery is one of the grounds listed by the Matrimonial Course Act[11] for the dissolution of marriages under Nigerian law. Although Evidence of adultery only makes the marriage voidable, the parties can decide to condone the excesses of the marriage and move on.

CONCLUSION

There is something radically wrong with a legal system that allows two criminal justice systems of opposite provisions running concurrently to operate. Things are changing, and the entire world is heading towards secularism. The penal code and the criminal code should be fused into one document if we are one indivisible people under God. You can’t have two systems of punishment for the Nigerian people. During fusion, the offense of adultery provided in the penal code should be removed, for it violates a person’s right.

 

  1. Is Adultery a Crime Under Nigerian Law?

2. Is the Right to Life Absolute Under the Nigerian Law?

 

Citations

[1] IBEABUCHI v. IBEABUCHI (2016) LPELR-CA/K/322/2012

[2] Finnis, J., 1991. Moral Absolutes: Tradition, Revision, and Truth (Michael J. McGivney Lectures of the John Paul II Institute). CUA Press.

[3] Exodus 20:14, Deuteronomy 5:18, Luke 18:20, Matthew 5:27-28, Matthew 19:9, Matthew 19:9, Mark 10:11-12, Romans 13:9, Proverbs 6:32, James 4:4, James 2:10, Leviticus 20:10, Job 24:15, Proverbs 2:16-19, https://www.biblelyfe.com/blog/bible-verses-about-adultery

[4] Chiroma, I.H., 1998. Punishment for the Offence of Zina (Adultery) under the Shari’ah and Nigeria Criminal Law: A Comparative Analysis. see also Adoga-Ikong, J.A. and Takim Otu, M., 2020. Customary law marriage practice in Nigeria: women and human rights. Journal of social sciences research, The6(3), pp.272-275.

[5] Lamond, G., 2007. What is a Crime? Oxford Journal of Legal Studies27(4), pp.609-632.

[6] Section 36 (12) CFRN

[7] (1961) 1 All NLR 400; Ifegwu v. Federal Republic of Nigeria (2001) 13 NWLR (Pt. 729) 103 at 138.

[8] Section 387  of the Penal Code.

[9] https://link.springer.com/chapter/10.1007/978-1-137-52605-2_6

[10] Section 388 of the Penal Code.

[11] Section 15(2)(b) of the MCA

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