By Ebun-Olu Adegboruwa, SAN
Nigeria and other African countries appear to still labour under the yokes of subjugation and imperialism, this time indirectly through the laws that should free them. It is worse in the Francophone entities where the policy of assimilation was imposed to take over the people, their culture, their language and indeed their entire existence. There are still so many laws in our statute books which either have no relevance to the current state of development of Nigeria or are inconsistent with our status as a sovereign state. But many of these laws rule and tie us to the apron strings of colonialism, not of their own making though.
Until recently in 2011 when the Evidence Act was amended, it used to be one of the laws bequeathed by the British masters, similar in that order to the Railway Act, Electricity Act and such other legislations that muzzle the liberty and rights of the citizens under the doctrine of sovereignty of the Crown. One of these archaic laws came up for interpretation by the Supreme Court recently and it gladdens the heart that the Justices of the Court who sat on the case displayed commendable patriotism in identifying the need to put Nigeria above dead legislations.
The Criminal Procedure Code (and indeed the Criminal Procedure Act) contain provisions that denigrate our status as free-born citizens with such deriding epithets as ‘idle and disorderly persons’ or ‘wanderers’, all of which were deployed by the British government to frustrate the noble campaigns of nationalists and activists for independence. Even after independence, successive governments in Nigeria have found it convenient to retain these oppressive legislations to suppress legitimate protests against bad governance. If our lawmakers will not discharge their constitutional responsibilities to expunge these offensive legislations from our statute books, let the courts continue to strike them down one after the other until they are totally obliterated. Permit me to share with you the facts of the case of Abu v State (2025) 7 NWLR (Pt.1989) 299, decided by the Supreme Court of Nigeria on Friday, March 1, 2025.
The appellant, Danjuma Abu, alongside five others were arraigned at the High Court of Gombe State on three counts charge of criminal conspiracy to commit armed robbery contrary to section 5(b) and punishable under section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act; illegal possession of firearms punishable under section 3 of the Robbery and Firearms (Special Provisions) Act and belonging to a wandering gang of persons associated with the purpose of habitually committing armed robbery punishable under section 306 of the Penal Code Law. The appellant and others were alleged to have conspired to rob at Tudun Hatsi Market, Gombe whilst in possession of a pistol with 4 rounds of live ammunition without a licence.
The appellant pleaded not guilty to the three-count charge preferred against him. The respondent in proof of its case called six witnesses whilst the appellant testified in his defence as DW4. At the end of the trial, the appellant was convicted on two of the three counts. He was discharged and acquitted on the second count of illegal possession of firearms. Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal which dismissed the appeal and affirmed the judgment of the trial court. Still dissatisfied with the decision of the Court of Appeal, the appellant appealed to the Supreme Court. In determining the appeal, the Supreme Court considered the provisions of Section 2(3) of the Robbery and Firearms (Special Provisions) Act and section 306 of the Penal Code amongst others.
Section 2 (3) of the Robbery and Firearms (Special Provisions) Act:
“Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearm is with intent to immediate or eventual commission by that person or any other person of any offence under section 1 of this Act or under the foregoing provisions of this section shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.”
Section 306 of the Penal Code:
“Whoever belongs to a wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of brigands, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”
On When a person shall be punished for belonging to a gang of persons associated for purpose of habitually committing theft –
By the provisions of section 306 of the Penal Code of Northern Nigeria, whoever belongs to a wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of brigands, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”
Per OGUNWUMIJU, J.S.C.:
“My Lords, this is a provision that has caused so many problems in its misuse by law enforcement agents. In the circumstances of this case, the facts do not support the evidence adduced by the prosecution. The appellant and his cohorts were in situ in an uncompleted building. They were not at the time of their arrest “wandering” by any definition of that word. “Wander” according to Dictionary.com is defined as “to ramble without a definite purpose or objective, roam, rove or stray” or “to go aimlessly, indirectly or casually; to meander”. The appellant and others were not found on the streets wandering about. They came from their different homes to gather in the uncompleted building. The evidence adduced in support of this count is insufficient to ground a conviction”.
On Meaning of “Wandering”
Wandering is defined as to ramble without a definite purpose or objective, roam, rove or stray or to go aimlessly, indirectly or casually to meander. (P.325, paas. D-E)
On Offence of Wandering
Per OGUNWUMIJU, J.S.C. at page 327, paras. A-D:
“At common law, the freedom to roam or “everyman’s” right is the general public’s right to access certain public or privately owned land, lakes and rivers for recreation and exercise. The right is sometimes called the right of public access to the wilderness or the “right to roam. The offence of “wandering” is in common law the same as vagrancy. The vagrancy law in this jurisdiction and some jurisdictions was created to criminalize the act· of wandering from place to place with no evidence of employment or a way to· support oneself. Prostitution, professional gambling and disorderly conduct, loitering, public intoxication and public defecation or urination were regarded as acts of vagrancy. “Vagrancy” or “wandering” was originally a crime targeted at homelessness and unemployment that was, overreachingly and subjectively used to arrest those seen as political opponents or trouble makers. Most crimes which were covered by the law of vagrancy now have individual charges targeted at the specific offence’’.
On Right to Freedom of Movement and when Circumscribed –
Section 41(1) of the 1999 Constitution guarantees right to freedom of movement and presupposes that every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom. This right to freedom of movement is circumscribed by section 41 (2) (a) of the Constitution which places a restriction on the right of movement of a person who has committed or is reasonably suspected to have committed a criminal offence and the movement of the person must be restricted to ensure that the person does not escape the law. [Okafor v. Lagos State (2017) 4 NWLR (Pt.1556) 404 referred to.] (P. 326, paras. B-G)
On Meaning of Public Place –
A public place is a place that can be accessed and used by any member of the public as a member of the public as of right even if subject to certain restrictions. (P. 329, para. F)
On Need to Expunge Wandering as an Offence from Penal Code and Criminal Code –
Per OGUNWUMIJU, J.S.C.:
“By way of obiter, I think the law against wandering has lost its relevance and is against the spirit and letters of the 1999 CFRN (as altered). However, I will not go as far as to hold the law unconstitutional and to strike it down or expunge it from the Penal Code of Northern Nigeria or the Criminal Code of Southern Nigeria. Most states still have this law in their criminal law codes. This is principally because this court has not been asked to do so by the appellant’s counsel and the court will not gratuitously strike out a criminal legislation. Apart from that, the whole essence of society is to set limits to the rights of individuals if and when they infringe on the rights of the corporate unit.
Thus, Chapter IV of the 1999 Constitution in setting out these fundamental rights makes them subordinate to the overall good of the society and accordingly enables laws that are necessary for democracy, security and the general wellbeing of the entire society. It appears that as William Pitt stated at that House of Commons speech in 1783: “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants, it is the creed of slaves.” The courts have the unique duty to deal with enforcement of human rights when infringed by the government or the executive or another private individual. It is the reconciliation of liberty with authority that is thus the bounden duty of the judges.”
Our statute books are filled with similar odious legislations that portray Nigeria as a country still under colonial rule. It is commendable that the Honourable Attorney-General of the Federation has constituted a committee to review the laws of the Federation. This must be done holistically, working with the legislature. The various States should also examine their laws to rid them of all legislations that seem to subjugate the people. But while they are at it, let the courts continue to free Nigeria from all colonial legislations that provoke our collective sovereignty.
