Table of contentsA brief historyThe relationship between the rule of law and the principle of legalityThe relevance of the principle of legality in criminal lawApplication in the Nigerian contextThe principle of legality in its most fundamental acceptance is the concept of criminal law that every criminal law should be published in a given jurisdiction. This suggests the need to put all laws in written form. This principle is based on the legal maxim “nulla crimen, nulla poena sine lege” which literally means “No crime without laws”. This means that without any prior criminal law, conduct cannot fall within the definition of a crime. This maxim is further north of the maxim of “nulla poena sine lege” which means “no punishment without prior criminal law”. This principle states that an offense must be clearly defined in the law. Since the law may be written or unwritten, the principle therefore implies that the law should be made accessible and predictable in such a way that any provision of the criminal law is made easily interpretable, so that the common man knows what it is. would make him criminally liable. .Say no to plagiarism. Get a tailor-made essay on “Why Violent Video Games Should Not Be Banned”? Get the original essay Legality also implies the need for laws not to have retrospective effects as to their very essence and application. This implies that all laws must be applied on the basis of those in force at the time the offense is committed and that the legal imposition of punishment when guilt is determined must not exceed what is prescribed by criminal law of this jurisdiction. The principle of legality aims to prevent a person from being unjustly accused or punished for a crime. It tends towards the idea that no person, regardless of nationality, race, age, gender or social class, can be convicted of a crime without a fair trial. Another connotation is that a person cannot be charged with a crime if it did not constitute a criminal offense at the time the crime was committed. The principle of legality can be considered as a criterion for measuring the civility of a country. The principle of legality has thus been accepted in many countries around the world and has been enshrined in the constitutions of these countries. International laws and conventions aimed at protecting human rights also support the principle of legality. A brief history The idea of ​​legality in criminal law emerged in the 17th century, promoted by representatives of illuminism such as Beccaria, Voltaire, Rousseau and Diderot, and was first included in the Prussian Penal Code. This was also mentioned in the United States Declaration of Independence (US 1776) and the Declaration of the Rights of Man and of the Citizen, France (1789). After the Second World War, many states agreed to adopt the Charter of the United Nations, which included the objective of achieving international cooperation in order to resolve economic, social, cultural or humanitarian problems, and to promote and encourage respect for human rights and fundamental freedoms for all. Three years later, the Universal Declaration of Human Rights (1948) was proclaimed by the General Assembly of the United Nations in Paris on December 10, 1948. According to article 11, “No one shall be guilty of an offense criminal offense due to one or more omissions which did not constitute a criminal offense, under national or international law, at the time it was committed. Nor will a heavier penalty be imposed than that which was applicable at the time when the criminal offense was committed.committed. Later, the United Nations adopted the International Covenant on Civil and Political Rights (1966), which states in Article 15: “No one shall be held guilty of a criminal offense by reason of any act or omission which does not constitute a criminal offense. offense, under national or international law, at the time it was committed. Nor will a heavier penalty be imposed than that which was applicable at the time the criminal offense was committed. If, after the commission of the offense, the law provides for the application of the lightest penalty, the offender will benefit from it. In addition to global international treaties, regional conventions on the protection of human rights have been adopted. One of the most important international treaties in this area was the Convention for the Protection of Human Rights and Fundamental Freedoms (1950). It is the first convention to give effect to most of the rights enshrined in the Universal Declaration of Human Rights and make them binding. In this Convention, article 7 states that “No person shall be held guilty of a criminal offense by reason of an act or omission which did not constitute a criminal offense under national or international law at the time of it was committed. » Nor will a heavier penalty be imposed than that which was applicable at the time the criminal offense was committed. Conventions on the protection of human rights containing similar provisions have been adopted on/or African continents. For example, in the American Convention on Human Rights (OAS), Article 9 states: “Freedom from laws ex post facto”: no one may be found guilty of any act or an omission which does not constitute a criminal offense under applicable laws. the law at the time. it was committed. A heavier penalty cannot be imposed than that which was applicable at the time the criminal offense was committed. If, after the commission of the offense, it provides for the imposition of a lighter penalty, the guilty party will benefit from it. In the African Charter (BANJUL) on Human and Peoples' Rights (OAU 1981), Article 7, paragraph 2, states that “No one shall be convicted for an act or omission which does not legally constitute an offense punishable at the time it was committed. . No penalty may be imposed for an offense for which no provision was made at the time it was committed. The punishment is personal and can only be inflicted on the offender. The principle of legality states that the law must be clear, verifiable and not retroactive. “No one may be held guilty of a criminal offense which did not constitute a criminal offense at the time it was committed. Nor will a heavier sanction be imposed than that which was applicable at that time. This is set out in Article 7 of the European Convention on Human Rights (ECHR), it is not only important that individuals are clear where the law stands to protect them, but it is also important that there has authority and/or action for government actions. “The principle of legality requires that the organs of state operate through the law” With a majority in Parliament, it is very possible for a government to grant excessive powers to the executive. This was demonstrated in the case of A v Secretary of State for the Home Office, in which indefinite detention of suspected terrorists was granted and then revoked by the courts, and was also found to contravene Articles 4 and 5 of the ECHR. Bingham argued that excessive discretion should not be granted to the state, supporting Article 7 of the ECHR, stating that the powers given to the state are defined bythe law and must not be exceeded. This element of the constitution, along with the principle of legality, allows individuals to use constitutional principles to challenge state authority. Ahmed and others v HM Treasury demonstrated how it is possible for a government to use such extensive powers with so little evidence, and the Supreme Court ruled that the Treasury had extended its powers unnecessarily. The rule of law d 'Albert Venn Dicey consists of three main principles: No one is punishable except in cases of manifest violation of the law established in the ordinary legal manner before the ordinary court. No one is above the law. General principles of the constitution and fundamental principles rights are the result of judicial decisions brought before the courts. Entick v Carrington is a landmark case that shows Dicey's principle in practice. The officers entering the house had no legality to do so, as the order was given by people without that authority. This not only violates the rule of law, but also raises questions related to the separation of powers. In Dicey's second principle it states that no man should be above the law, as previously explained in R v Chaytor and others, all members of society should be subject to the law. By previously examining the principle of legality, it appeared that it is not always clear and consistent. It can also be argued that the implications of the rule of law are not always clear. In 2008, the House of Lords disagreed with the Divisional Court in the case of R (Corner House Research) v Director of the SFO, finding that the directors had decided to abandon an investigation into corruption charges against Saudi Arabia. The rule of law could arguably be seen as too lenient and too subjective, allowing judges to choose when to implement the principle, which would make it much less of a “rule” and more of a “guidance.” The relevance of the principle of legality in criminal lawThe orientation of any society regarding the functioning of the law and the proper application of the laws established in criminal matters would require strict compliance with the principles of legality. The purpose of legality lies in the need for society to follow the basic concepts that guide legality. Among these components are 1. Nullum crimen sine lege; nulla poena sine legeThis rule means that only the law can define a crime and describe a punishment and, mainly, is considered an act adopted by the legislature of any state. In any case, the notion of “law” designates both written and unwritten law and implies qualitative requirements, in particular those of accessibility and predictability. Accessibility requires that everyone has the opportunity to be informed about existing criminal laws, which includes the obligation of the state to make them public in any way.2. The need for clearly defined lawsAccording to this principle, an offense must be clearly defined in the law and it must be foreseeable to any person. This condition is met when a person can know the wording of the relevant provisions and, if so, with the help of the courts' interpretation of them, what act or omission will give rise to criminal liability. Taking the example of the crime of terrorism, when defining offenses of a terrorist nature, the principle of legality requires that a necessary distinction be made between these offenses and ordinary offenses so that each individual as well as the criminal judge has sufficient legal elements to know whether an action is sanctioned for one or the other infraction. This is particularly important with regard toterrorist offenses, as they merit harsher prison sentences and ancillary sanctions and prohibitions with major effects on the exercise of other fundamental rights are generally provided for.3. A conviction can only be imposed on the basis of existing laws. This rule states that no one can be convicted for an act or omission which did not constitute an offense at the time it was committed. The basis of this rule is that criminal law must prevent the commission of the criminal offense before combating it. According to this principle, it is prohibited to retrospectively apply the criminal law to the detriment of an accused. Instead of the Veber v. Estonia of the European Court, following this principle, enshrined in Article 7 of the European Convention on Human Rights, in one case the European Court concluded that there was a violation of this article in which the act criminal offense constituted a continuing offense. In this case, the European Court ruled that: “The applicant was convicted under articles 148-1 and 7 of the penal code, as they have been drafted since January 13, 1995, for tax offenses committed during the period 1993 to 1996. It observes that the application of the criminal law of January 13, 1995 to subsequent acts is not at issue in this case. The question to be determined is whether the extension of the law to acts committed before that date infringed the guarantee set out in Article 7 of the Convention. The Court also notes that, according to the text of Article 148-1 of the Penal Code before its amendment in 1995, a person could only be held criminally responsible for tax fraud if an administrative sanction of the same nature had been imposed on him. offense. The condition therefore constituted an element of the offense of tax evasion without which a criminal conviction could not follow. It further observes that a considerable number of acts for which the applicant was found guilty took place exclusively during the period before January 1995. The sentence imposed on the applicant "was a sentence of three years and six months "suspended imprisonment" took into account acts committed both before and after January 1995. In these circumstances, the Court considers that the national courts retrospectively applied the 1995 amendment to the law to conduct which did not previously constitute a criminal offense. Application in the Nigerian Context In the Nigerian context, the principle of legality is adequately enforced by various statutory provisions, including the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions of our criminal codes and laws. Provisions which ensure compliance with this principle include section 36(5) CFRN 1999 which states: “Every person charged with a criminal offense is presumed innocent until proven guilty. » Furthermore, section 36(8) ) The CFRN 1999 provides: “No person shall be held guilty of a criminal offense by reason of any act or omission which, at the time it occurred, did not constitute such an offense and no penalty may be imposed for a criminal offense heavier than the penalty in force at the time the offense was committed.” In the same vein, Article 36(12) enshrines the basis of the fundamental rule contained in the principle of legality according to which "a person cannot be found guilty of a criminal offense unless that offense is defined and the penalty is therefore prescribed in a written law. We can also see the provision of Article 11 of the Penal Code. It states: “A person shall not be punished for doing or omitting to do any act unless the act or omission constitutes an offense under the law in force at the time it occurred. » Other provisions have been.