By Olumide Babalola
In research conducted in 2024, I discovered that there is no reported (appellate court) decision where a Nigerian has been jailed for bigamy, but we still retain such provisions in our statute books. Even the Supreme Court referred to such provision as a “dead letter” in Simeon Kuforiji v V.Y.B. Nigeria Limited (1981) LPELR-1716(SC).
I also discovered there is no existing decision where the bigamy provisions have been tested against the demands of the constitutional right to privacy, so I approached the court to test our laws in Suit No. FHC/LF/FHR/48/2025 against the Attorney General of the Federation. Locus standi was not an issue since I am a married Nigerian.
Via originating summons filed on 23rd July 2024, I posed the following questions:
i. Whether or not the provisions of section 370 of the Criminal Code; section 387 of the Penal Code (Northern States) and section 384 of the Penal Code Act criminalizing bigamy interfere with the right to privacy of Nigerian citizens contrary to section 37 of the Constitution of the Federal Republic of Nigeria, 1999?
ii. Whether or not the provisions of section 370 of the Criminal Code; section 387 of the Penal Code (Northern States) and section 384 of the Penal Code Act criminalizing bigamy are justifiable in a democratic setting like Nigeria’s under section 45 of the Constitution of the Federal Republic of Nigeria, 1999?
The AGF’s office filed a robust answer to my questions and in resolving the dispute, Hon. Justice M.O. Olajuwon interestingly held as follows:
On interpretation of provisions criminalising bigamy
“This section also only applies to a man who is subject to a customary law in which extra-marital sexual intercourse is recognised as a crime and not evert married man. It follows that, if the custom of such a man does not criminalise extra-marital intercourse, he will not be guilty of committing a crime, except it amounts to rape”
On whether the provision interferes with privacy within a cultural context
“Based on the above interpretations, the key focus is understanding privacy within the constitutional context, comparing individual rights with societal standards and legal frameworks. I am of the considered view that the laws (The Codes) honour various cultural and religious beliefs without violating privacy. The Codes balance individual rights and communal values, safeguarding the privacy of individuals while respecting the cultural and religious tenets of communities. The Criminal Code and Penal Codes in question in this suit do not violate citizens’ privacy but correspond with the constitutional rights to freedom of thought, conscience and religion found in section 38 of the Constitution and when applied in context, they protect privacy and constitutionally while recognising the societal needs to uphold public morality…. I hold therefore that the Criminal and Penal Codes in issue have not in any way interfered with the right to privacy.”
The considered decision of My Lord, Olagunju, J. represents a few things: First, it recognises that there are Nigerian communities where bigamy as defined, does not constitute an offence. Secondly, it interestingly identifies the theoretical issue around individualism and collectivism within the context of privacy – this underscore a major difference between the Western approach to privacy (individualism) and the African/Asian approach to privacy (collectivism). However, even though I may(will) not appeal the decision, the court conflated or equated the consequences of voidness of a second marriage under the Marriage Act with criminality under the Codes when the learned judge made an analogy with volenti-non-fit injuria regarding anyone who chooses to marry under the Act.
Click here to download the judgment.
OB-v-AGF-Bigamy1
